MARRIAGE CANONS

from

THE DECRETUM OF GRATIAN

and

THE DECRETALS, SEXT,

CLEMENTINES AND EXTRAVAGANTES

translated by John T. Noonan, Jr.

Milo Rees Robbins Professor of Law, Emeritus, University of California, Berkeley

Judge of the United States Ninth Circuit Court of Appeals.

edited and supplemented by

Augustine Thompson, O.P.

Assistant Professor of Medieval Christianity, University of Oregon(1)
1993

COPYRIGHT © 1967

John T. Noonan, Jr.

THIS EDITION PRODUCED WITH PERMISSION

OF JUDGE NOONAN

The following sections were omitted in the original translation and have been translated by the editor for this edition: C. 27 q. 1; C. 28 q. 1 cc. 9, 11-14; C. 32 q. 1, q. 2 cc. 1-10, q. 4, q. 5 cc. 1-17, 19-23, q. 7 cc. 11-16; C. 33 q. 2 cc. 8, 10-19, qq. 4-5; C. 35 q. 5; X 4.11.1-8, X 4.15.6-7, X 4.17.13, X 4.20.5; VI 4.1-3; Clem. 4.1.1; Extrav. Io. 6.1; and the rubrics to the Liber Extra. All sections contained within bold brackets ``[ . . . ]'' are editorial inserts; ordinary brackets ``[ . . . ]'' appear in Friedberg's edition.

For these sections and this edition:


COPYRIGHT © 1993

Augustine Thompson, O.P.


For the sake of consistency, scriptural quotations follow the Confraternity edition of Challoner's revision of the Douay-Rheims Version (New York: Catholic Book Pub. Co., 1963), the translation of the Latin Vulgate with the least archaic English available. Passages have been adapted when the Latin of Ed. Fried. did not match that of the Vulgate. Archaic words have also been modernized.

The engravings of the trees of consanguinity and affinity are adapted from Decretum Magistri Gratiani, 2. ed., ed. A. Friedberg (Leipzig, 1879), cols. 1425-6, 1431-2.

This edition and the original translation omit the Tractatus de Poenitentia (C. 33 q. 3).

TABLE OF CONTENTS


THE DECRETUM

CASES 27-36

C. 27: Impediments

q. 1: Vows

q. 2: Marriage

C. 28: Non-Christian Marriage

q. 1: Existence    

q. 2: Remarriage

q. 3: The Twice-Married

C. 29: Mistake and Consent

q. 1: Persons

q. 2: Qualities

C. 30: Spiritual Affinity

q. 1: Creation of Spiritual Affinity

q. 2: Age of Consent

q. 3: Spiritual and Adopted Children

q. 4: Extent of Spiritual Affinity

q. 5: Clandestine Betrothal

C. 31: Betrothals

q. 1: Prior Adultery

q. 2: Consent

q. 3: Parental Violation of Betrothals

C. 32: Misuse of Marriage

q. 1: Marriage of Prostitutes

q. 2: Marriage for Sex Alone

q. 3: Marriage of Slaves

q. 4: Sterility

q. 5: Rape

q. 6: Adultery

q. 7: Remarriage after Adultery

q. 8: Marriage for Conversion

C. 33: The Marriage Debt

q. 1: The Hexed and Impotent

q. 2: Prior Fornication

[q. 3: The Treatise on Penance is omitted.]

q. 4: Devotional Abstinence

q. 5: Vows of Continence

C. 34: Presumed Death of a Spouse

qq. 1 & 2: Separation and Remarriage

C. 35: Relationship

q. 1: Existence of the Impediment

qq. 2 & 3: Consanguinity and Affinity

q. 4: Six Degrees of Consanguinity

q. 5: Calculation of Degrees

q. 6: Testimony on Relationship

q. 7: Children of Incestuous Unions

q. 8: Dispensation

q. 9: Annulment and Remarriage

q. 10: Affines of Affines

C. 36: Abduction

q. 1: Definition

q. 2: Subsequent Marriage

DECRETALS OF GREGORY IX

BOOK FOUR

Tit. 1: Betrothals and Marriages

Tit. 2: Betrothal of Children

Tit. 3: Clandestine Betrothal

Tit. 4: Betrothal of Two

Tit. 5: Conditional Betrothal

Tit. 6: Marriage of Clerics and the Vowed

Tit. 7: Marriage of Adulterers

Tit. 8: Marriage of Lepers

Tit. 9: Marriage of Slaves

Tit. 10: Children of a Free Woman

Tit. 11: Spiritual Affinity

Tit. 12: Legal Relationship

Tit. 13: Intercourse with a Betrothed's Blood Relative

Tit. 14: Consanguinity and Affinity

Tit. 15: The Frigid, the Hexed, and the Impotent

Tit. 16: Marriage Prohibited by the Church

Tit. 17: Legitimacy

Tit. 18: Denunciation of Marriage

Tit. 19: Divorce

Tit. 20: Nuptial Gifts and Dowries

Tit. 21: Remarriage

THE SEXT

BOOK FOUR

Tit. 1: Betrothals and Marriages

Tit. 2: Betrothals of Infants

Tit. 3: Spiritual Affinity
 

CLEMENTINES

BOOK FOUR

Tit. 1: Consanguinity and Affinity


 

EXTRAVAGANTES

OF JOHN XXII

Tit. 6: Vows and Release from Vows

Appendix 1: Trees of Consanguinity and Affinity

Appendix 2: Biblical Texts Cited in Marriage Legislation

GRATIAN

MARRIAGE CANONS FROM THE DECRETUM (Vulgate Edition)

(CC. 27-36)

(c. 1140)


THE DECRETUM

CASE TWENTY-SEVEN

Gratian: A certain man under a vow of chastity betrothed himself to a wife; she renounced the arrangement to leave and marry another. He, whom she had earlier betrothed, sought to regain her. The questions here are:

First, can there be a marriage between those who have made vows?

Second, may a spouse lawfully leave and marry another.

 

 

QUESTION I

Part 1.

Many authorities prove that those under vows cannot contract marriage.

The Council of Carthage, c. 104, provides for widows who have abandoned a profession of continence:

Widows who put off their religious habit and attempt marriage are excommunicated. Since chastity has a great reward, one should protect it with the greatest attention and care. So, if a widow or younger, less mature, unmarried woman, after vowing herself to God, putting aside lay dress, and appearing in religious habit before the bishop and the Church, then wants to enter worldly marriage, she deserves damnation, as the Apostle [1 Tim. 5:12] says. She has broken a promise of chastity vowed to God. Such are excluded from Holy Communion and may not participate in celebrations with the faithful.

Wives remain guilty of adultery, even if they do not become loathsome to their husbands. How much more guilty of adultery are widows who, after transferring their obedience to God, break the fidelity they have spontaneously and freely offered to him, and enter a second marriage out of carnal desire? Some women, whom men had taken by force, later consented to marry their violent abductors because of carnal desire. They too have incurred the aforesaid condemnation. Of such, the Apostle said [1 Tim. 5:11-12], ``for when they have wantonly turned away from Christ, they will wish to marry, and are to be condemned because they have broken their first promise.''

Also, from Gregory's letter to Boniface:

C. 2.

On widows and virgins who abandon their

religious dedication.

I think you know, most dear brother, that St. Paul [1 Tim. 5:11-12] and many other Fathers have already condemned the widows about whom Your Charity consulted us, because they have abandoned their dedication of widowhood and have not repented. We, by apostolic authority, also condemn them, separate them from the Communion of the faithful, and relegate them to the vestibule of the church, until such time as they obey their bishops and return freely and voluntarily to the good work they had begun.

§1. We have this decree from our predecessor, Pope Innocent of blessed memory, on unveiled virgins who stray [C. 27 q. 1 c. 9]: ``Those who have indicated that they will persevere perpetually in virginal dedication, although they are not veiled, must do penance for a certain time if they marry, for they are betrothed to the Lord. If in human affairs a good-faith contract may not be broken for any reason, how less can a promise made to God be dissolved without punishment? . . .''

§2. If unveiled virgins must do public penance and be excluded from the faithful until it is completed, how much more should widows? They have the insight and experience of their age and maturity, and they experienced the rights of marriage with their husbands before they took the religious habit. Now they would apostatize and return to their vomit [cf. 2 Pet. 2:22]. We, along with all the faithful, should bar them from entering a church, and hand them over to custody, just as St. Paul handed a man like them over to Satan, so that his spirit be saved on the Day of the Lord [1 Cor. 5:5].

Concerning such, the Lord spoke through Moses, saying [Deut. 13:5], ``And you shall take away the evil out of the midst of you.'' On this, the prophet said [Ps. 57 (58):10], ``The just shall rejoice when he sees the revenge; he shall wash his hands in the blood of the sinner.'' On these, others like them, and those who support them, it says [cf. Rom. 1:32], ``They are guilty not only because they do these things, but they applaud others doing them.''

Also, from the Decree of Pope Gelasius, sent to the Sicilian bishops, c. 9:

After religious dedication, widows and virgins

cannot pass to marriage.

We do not suffer widows and virgins, after long observance of religious dedication, to pass to marriage. Likewise, we forbid virgins who have passed many years of their life in monasteries to marry.

Also, Cyprian to Pomponius, in On Virginity:

C. 4.

A woman can be corrupted by any sensuous act.

Nor may any woman excuse herself by saying that her virginity can be tested and proved, for a midwife's hands and eyes are often deceived. Even if she is found to be a virgin in respect to her womanhood, she may still have sinned with some other part of her body. One can be corrupted in ways that cannot be tested. Do not the couch, embraces, whispers, and filthy sordid bedroom of a couple lying together also confess to impropriety and crime?

If a husband arrived and found his wife lying with another man, would he not become indignant and irate? Would he not, in sorrow and zeal, take his sword in hand? Would not Christ, our Lord and Judge, if he saw a virgin dedicated and consecrated to him in holiness lying with another, become just as indignant and angry? Taking counsel, we must provide and arrange that all our brothers and sisters be spared the Judge's spiritual sword when he comes.

The same, [in the same letter]:

[C. 5.]

If after completing penance for their unlawful relationship and separating from one another, they are found, through careful examination for virginity by a midwife, still to be virgins, they may be readmitted to the Church for Communion. If they later return to the same men and begin to live together in the same house under the same roof, they must be cast out under even graver censure, and not so easily readmitted to the Church.

If one of them has fallen and been corrupted, let her do full penance, because her crime makes her an adulteress, not before a husband, but before Christ. Then when she has confessed she may, after a justly appointed period, return to the Church.

If they stubbornly persist and refuse to separate, let them know that, because of their sordid stubbornness, we will never admit them to the Church, lest their wrong become an example that will ruin others. Nor is it contrary to life or salvation if no exception to this rule is made, even for bishops and priests.

Also, from the Sixth Synod [in Trullo, c. 4]:

C. 6.

A cleric is deposed, and a layman excommunicated, for adultery with a nun.

If any bishop, priest, deacon, subdeacon, lector, psalmist, or porter commits adultery with a woman consecrated to God, let him be deposed, for he has corrupted a bride of Christ. If a layman, he is excommunicated.

Also, from the Sixth Council of Toledo, c. 8:

C. 7.

Widows and girls who marry after taking the religious habit are suspended from Communion.

Some widows and girls, either with their parents or by themselves, put on the religious habit at home. If afterwards, contrary to the rules and canonical precepts of the Fathers, they attempt marriage, they are to be suspended from Communion for a long period, while they atone for this unlawful act. If they do not make atonement, they are to be perpetually excluded from Communion and all celebrations of the faithful.

[Also, from the council of Pope Martin:

[PALEA. C. 8.

[No pontiff may give the veil to widows, because, as established in Pope Gelasius' Decree, c. 13, neither Divine Authority nor canonical forms provide for this. If a woman professes continence on her own, one can read in Gelasius, c. 12, that he intends her to answer for herself to God. According to the Apostle [1 Cor. 7:39], if she had been unable to remain continent, she was not, after all, prevented from remarrying. Thus, having thought this over carefully herself, she should now guard the pledge of purity she made to God.

[We, supported by the authority of the Fathers in this holy council, establish and freely decide that, if any woman has taken an unconsecrated veil on her own, and offered herself to God like those who have taken the veil, she should forthwith also take the nun's habit, for it completes the symbol. By the same logic, she who has taken the veil on her own, may also abandon it.]

Also, from Pope Innocent's Decrees, c. 20, [in Letter ii, to Victricius, in the Collection of Canons, c. 13]:

C. 9.

On those who marry after making a vow of virginity

without taking the sacred veil.

Those who have never taken the sacred veil, but have indicated that they will persevere perpetually in virginal dedication, [and following [cf. C. 27 q. 1 c. 2]: PALEA although they are not veiled, must do penance for a certain time if they marry, for they are betrothed to the Lord. If in human affairs a good-faith contract cannot be broken for any reason, how much less can the promise they have made to God be dissolved without punishment?] If the Apostle [cf. 1 Tim. 5:12] said that those who abandon a dedication of widowhood deserve damnation for violating their first pledge, how much more do virgins who violate their pledge?




Also, from the same Decrees, c. 19, [in the same letter to Victricius, in the Collection of Canons, c. 12]:

C. 10.

Sacred virgins may not be admitted to penance

if they marry publicly.

Those who have married Christ spiritually, if they later marry publicly, are may not be admitted to penance, unless those whom they have joined leave the world. In human affairs, whoever marries another while her husband is alive is an adulterer, and may not do penance until one of the two husbands has died. How much more is this so when one married to the Immortal Bridegroom passes to a human marriage?

Also, from the Council of Trebur:

C. 11.

Dissolute individuals living among monks and nuns are to be expelled from the Church and placed in prison.

There are dissolute and detestable individuals living among monks and nuns, who have abandoned their dedication to sanctity and introduced unlawful and sacrilegious pollution. They persist in ignoring the judgment of conscience, and have freely procreated children in unlawful unions.

We command them to be expelled from monastic communities and conventual churches, and to be restrained in prison. There they shall stay, weeping over their crime in unbroken lamentation, to be warmed by the purgatorial fires of repentance until death, unless, through an exercise of singular mercy, they are allowed to return to the Grace of Communion.

Also, from the same:

C. 12.

Monks or virgins consecrated to the Lord are excommunicated if they marry.

We decree that neither a virgin consecrated to God nor a monk may contract marriage. If any do so, let them be excommunicated. We decree that the bishop of the place has authority to show mercy and compassion to those who confess this.

Also, from the same:

C. 13.

Let those who knowingly marry nuns afflict themselves with cries of repentance for the rest of their lives.

So, those who knowingly enter matrimony with nuns enter that union in offense to Christ. In accord with the judgment of zealous Christians, they must separate and never rejoin them in the conjugal bond. Rather, let them afflict themselves ernestly with cries of repentance for the rest of their lives.




Also, from the same:

C. 14.

Those who marry sacred virgins are deprived

of Holy Communion.

We understand that certain men have dared to marry sacred virgins. Since this occurred after their dedication to God, they have formed an incestuous and sacrilegious union. It is wholly equitable that they be barred from Holy Communion. They may not be reconciled without manifest public penance. Nevertheless, the Last Sacraments should not be denied them as they leave this world if they are worthily repentant.




Also, Gregory:

C. 15.

Let those who refuse to avoid fornication be returned the monastery and confined there.

We have heard that a certain wicked man, under diabolical influence, convinced a woman consecrated to God to leave her monastery. Then, after she had left, another man brought her back. The first wicked man again coaxed her out of the monastery by making evil proposals and kept her dissolutely in his house. It is our will that, by your episcopal authority, she be returned to her monastery and confined there.



Also, from the Council of Arles:

C. 16.

It is wrong for widows to abandon their sacred dedication after taking the veil.

This synod decrees that widows, who spontaneously receive the veil of oblation from the sacred altar, must persevere in that dedication. For we decree that it is wrong, after consecrating oneself to God by the veil, to deny that one has received it through the Holy Spirit.

Also, from the same:

C. 17.

Let those who marry women who have received the sacred veil be anathema.

If anyone takes in marriage a woman consecrated by the sacred veil, and then pollutes the dedication she has offered to God through an incestuous and sacrilegious union, it is wholly equitable that he be excluded from Holy Communion, as is read in the enactments of Pope Gelasius, c. 20 [cf. C. 27 q. 1 c. 14]. He can in no way to be reconciled without manifest public penance. If such repent, they should not be denied the Last Sacraments when they depart this world.

§1. In the Council of Chalcedon, c. 17: ``Let those who do this be excommunicated; those confessing to it may be granted mercy by the bishop's authority.''

§2. In the letter of Pope Siricius, c. 6: ``Some women, who are veiled and consecrated to God, secretly abandon their dedication to sanctity, involve themselves in sacrilegious pollution, and from these unlawful relations publicly and freely procreate children. It has been decided that these marriages and the detestable persons involved should be eliminated from monastic communities and conventual churches. Let them be confined in prison to weep for their crime in uninterrupted lamentation.''

Hence, following the Lord's word and canonical authority, we command, in this holy synod, that they be completely separated, and that they swear under oath no longer to cohabit under one roof.

Also, Gregory to Vitalian, bishop of Siponto, [in [Register], VII (Indiction 1), ix]:

C. 18.

One who throws off religious attire should be compelled to reassume the habit, and be enclosed in a monastery.

If you had known how to be a bishop and a protector of the religious habit, your provision in this matter would have prevented the daughter of the Master of the Soldiers, Tullian of glorious memory, from returning to secular attire after throwing off the religious habit, and this absurd letter would not have been sent to us. But, as you acted with indolence and sloth, this unlawful act has been perpetrated to your disgrace. As we said above, if you had exercised care, we would have received a report of that wretched woman's punishment rather than her crime. But you were so sluggish and negligent that, if canonical pressure had not been applied to you, you would not have known how to maintain oversight and discipline. So now we shall, God willing, show you how to exercise oversight at the proper times.

§1. When you receive this letter, be vigilant and punish immediately what you, out of cowardice, have hitherto been ignoring. It is urgent that you and our Guardian Sergius seize the aforesaid woman without delay. Then you must, not only immediately put her back into that habit which she treated so foully and contemptuously, but also confine her in a monastery. There she is to be guarded with the greatest severity. You must display great care to discover by your oversight all other crimes that have been committed.

§2. If, in this matter, any lay person attempts to resist you through some ruse (something we could not believe), suspend him from participation in Communion. Then report back to us immediately on how grave his actions were. Then, you shall be told what sort of expiation should be made, if you cannot determine it by your own judgment.

§3. In all such matters, strive to display the greatest caution and vigilance, lest you further multiply your own culpability through carelessness, instead of reducing it somewhat through conscientiousness.



The same, to the Guardian Sergius [in [Register], VII (Indiction 1), x]:

C. 19.

She who exchanged religious dedication for secular attire should be handed over to the regional guardian.

If you had been a man, or had exercised any oversight, you would have shown yourself the guardian of regular discipline. Then this unlawful infraction would have been corrected by punishment, before report of it reached us. But, as you have been foolishly negligent, you have not only displeased us in this, but we are now taking counsel on punishing your sloth.

So put aside all delay or excuse and make haste, along with our brother Chorbishop Vitalian, to apprehend the daughter of the Master of the Soldiers, Tullian of glorious memory, who threw off the religious attire that she had freely assumed, and besmirched herself with lay clothing. Put her back in the religious habit and place her in a monastery, where she can be guarded with the greatest severity.

Never allow any relaxation of the guard, unless you receive a letter from us. If you are in any way negligent or slow in this, know that you will be punished most severely. Now, while your punishment is held in abeyance, investigate what you yourself ignored. For, as we said, if you had earlier possessed the intelligence of a man, you would have already commanded what was necessary, instead of having to learn about it through our admonition.



Also, Augustine, in The Conflict of the Vices and Virtues, [xxiv]:

C. 20.

Those who resolve to observe continence cannot be granted permission to marry.

Permission to marry is granted to some, that is, to those who have professed neither virginity nor chastity as widows. To some it is not granted, that is to those who resolve to practice virginity or continence. Fornication is conceded to none without punishment.

Also, in the book On the Good of Marriage:

C. 21.

Those who violate a dedication to continence are

worse than adulterers.

It is manifest that women who lapse into marriage from their higher dedication, that is, from the holy chastity they have vowed to God, are worse than adulterers.

Also, from the Council of Chalcedon, [c. 16]:

C. 22.

Monks and virgins who have dedicated themselves to God cannot be joined in marriage.

As with a monk, no virgin who dedicates herself to God is permitted to marry. If they do so, they are rendered excommunicate. But we declare that they may receive forgiveness, if the bishop of the place approves.

Also, from the same, [c. 15]:

C. 23.

Deaconesses who marry after their consecration are anathema.

We establish that deaconesses may not be consecrated before forty years of age, and then, only after careful testing [cf. 1 Tim. 5:9]. If they receive consecration, and practice their ministry for a time, but then marry, they abuse God's Grace. Thus she and the one who married her are anathema.

Also, from the Synod of Ancyra, [c. 18]:

C. 24.

They who abandon promised virginity are reputed bigamous.

One who has abandoned a promise of virginity in contempt of her profession, that is, one who went on to a second marriage, is to be considered bigamous.

Also, from the Council of Granada, [c. 13]:

C. 25.

Even at death, communion should not be given to virgins dedicated to God who have become enslaved to lust.

It pleased us that communion not be given, even at death, to virgins who have dedicated themselves to God, if they have lost the seal of their virginity and have enslaved themselves to lust, failing to understand what they have lost.

If any acknowledge that they lapsed through bodily weakness, do penance for part of their life, and abstain from intercourse, it pleased us that they receive communion at death.

Also, from the council of Pope Martin, [c. 30]:

C. 26.

Let a cleric's daughter be compelled to penance, if she takes a husband after becoming a sister.

The daughter of a bishop, priest, or deacon is excluded from Communion if she takes a husband after becoming a sister, unless she does penance after the man dies. If her father or mother receives her with affection, the father must be arraigned before the council, and her mother is not permitted Communion.

If, however, while he is still alive, she leaves him and does penance, let her take Communion at the very end of her life if she requests it.

Also, from the First Council of Toledo, [c. 16]:

C. 27.

A sister should not be reconciled to the Church,

unless she refrains from sin.

A sinful sister is not to be received into the Church, unless she refrains from sin. If she does suitable penance and refrains from sin for ten years, let her receive Communion. Until she is readmitted to the church for prayers, however, let her attend no celebration with Christian women. If she is admitted, let the one who received her be sent away and corrected with the same penalty. One who takes a husband may not be admitted to penance until he dies, unless she lives chastely while he is alive.

Also, from Gregory to John, bishop of Cagliari, [in [Register], III, ix]:

C. 28.

On nuns led into adultery.

If any nun, because of past laxity or uncorrected evil custom, has been induced to fall into adultery, or should be dragged into this abyss in the future, we decide that she, after severe and suitable punishment, be placed for penance in a stricter monastery of virgins. Let her spend her time there in prayers and fasting, and thus be corrected through penance. Let this be a warning to others for stricter discipline.

A man discovered in similar iniquity with women is to be deprived of Communion if a layman. If a cleric, he is to be removed from office and perpetually confined in a monastery to lament his excesses.

The same, to Bishop Januarius, [in [Register], III, xxiv]:

C. 29.

Those guilty of impropriety with religious women may receive Communion after a suitable penance.

We want you to allow those suspended from Communion for impropriety with religious women, who have left their monasteries, to return to Holy Communion, so long as Your Fraternity has provided for them to undergo suitable penance for their crime.






Also, from the Novels of the Emperor Justinian [Nov. 123.64 (Coll. IX. 15)]:

C. 30.

On the ordinances of the emperors.

If anyone rapes, solicits, or corrupts an assistant, deaconess, nun, or other woman of religious life or habit, let his goods, and those of anyone else implicated in this sin, be sold to found a religious house where the woman can live. Let religious bishops, treasurers, and provincial governors, or their officials, see to this. The man himself is subject to capital punishment.

The woman should be thoroughly investigated, and placed in a secure monastery with her goods. If she was a deaconess with legitimate children, they are to receive their share of the legal inheritance.

Also, from Pope Eugenius II's decrees [at the Council of Rome, c. 29]:

C. 31.

Let those veiled under the pretext of religion guard the chastity of their religious habit.

Let women veiled under the pretext of religion, or living regularly in a monastery, guard the chastity of the habit they received at home.




Also, from the [First] Council of Arles, [cc. 22-23]:

C. 32.

A monk who takes a wife can never be selected for an office of sacred rank.

It is not permitted for a monk in a monastery to have a stole or cincture. And, if any monk associates himself with a wife, he may never be selected for an office with ecclesiastical rank.




Also, Augustine, in On the Good of Widowhood, [xxviii]:

C. 33.

Before profession of continence, widows may marry whom they wish.

Let widows who are not continent marry, but only before they profess a vow of continence. For if they do not observe such a vow, they are condemned by law.

Also, Nicholas to Archbishop Charles and his suffragans:

C. 34.

Widows are not permitted to abandon their vows of continence after profession.

A widow who has taken on her head the sacred veil, if she prays among the other veiled women in the church, offers her offerings with them, and has professed to persevere in the same habit, pledging never to lay aside the veil of religion, should not presume to abandon this religious observance.

Also, from the Council of Orange, [c. 27]:

C. 35.

None are permitted to violate a profession of widowhood, after the habit has been received before the bishop.

We say that a profession of widowhood before the bishop in the sacristy, when one has received the widow's attire from the bishop, is not to be violated. We decree that she who deserts her profession has merited condemnation.




Also, from the [Tenth] Council of Toledo, [c. 5]:

C. 36.

Let the ritual and ceremony of making profession

follow this order.

All women entering sacred religion shall cover their head with a coverlet and recite a written and authorized profession, so that they cannot afterwards renege on that written profession through some rash transgression.

§1. Those who later commit any transgression by act or intention are to suffer the sentence of excommunication, and, after they have reformed their habits, they are to live in a monastery until the end of their lives, bound under the burden of arduous penance.

Also, from the Council of Arles:

C. 37.

Those who violate the bodies of women consecrated to God are sons of perdition.

Everyone should know that the bodies of women consecrated by vows of betrothal to God and by the words of the priest become a temple, as the Scriptures [cf. 1 Cor. 6:15-20] testify. Thus those who violate them are sons of perdition, as the Apostle [cf. 2 Thess. 2:4] says.

[Also:

[PALEA. C. 38.

[The same.

[Let Widows, who decide to marry before professing continence, marry whomever they chose for their husbands. The position of virgins is similar, but they cannot be compelled to take husbands against their parents' will.]

Also, Gregory, to the Subdeacon Artemius, in [[Register], I], xli:

C. 39.

Monks who have taken wives are to be confined

in a monastery.

Since we know that some monks have fallen into such immorality as to associate themselves publicly with wives, we order you to seek them out with all vigilance and, when you find them, make them return, using coercion if necessary, to the monasteries where they were monks.

Also, Pope Innocent [II, in the Council of Rome, c. 7, § Ut lex]:

C. 40.

On a nun charged with lapsing into adultery.

We establish that bishops, priests, deacons, subdeacons, canons regular, monks, and professed oblates, who have transgressed their dedication by daring to take wives, are to be separated from them. Thus the rule of continence and purity, which is pleasing to God, will be promoted among ecclesiastical persons and those in Holy Orders. We declare that such a union, contracted contrary to ecclesiastical norms, cannot be considered matrimony. So let them separate and do suitable penance for their transgression. We order this also to be observed for women who are nuns, if (God forbid) they attempt marriage.

Gratian: All these authorities prohibit those who have made vows to contract matrimony, and order some of whose who do to separate.

Part 2.

In contrast, Augustine declares such separation a sin, speaking thus [in On the Good of Widowhood, vii]:

C. 41.

The marriages of those who have made vows

should not be dissolved.

The good of marriage remains a good, as it has always been a good among the People of God. Once it was a legal observance, now it is a remedy for weakness and gives human solace to many. Now it allows human beings to procreate children, not like animals by merely copulating with females, but in a decent conjugal order.

Nevertheless, when a Christian mind focuses on celestial things, it wins a victory beyond all praise. Yet, since, as the Lord says [Mt. 19:11-12], not all can accept this message, let those who can do so, and let those who cannot be content to marry. Let them weigh well what they have not chosen, and persevere in what they have embarked on. Let no opportunity be given to the Adversary, and let Christ be robbed of no offering.

§1. If purity is not preserved in the conjugal bond, one should fear damnation. But a more excellent reward is proposed for virgins and widows who practice continence. When this course is considered, elected, and promised by the required vow, not only marrying, but even wishing to marry, is damnable. The Apostle proves then when he says, not of those marrying for sensuality, but of those marrying in Christ [1 Tim. 5:11-12], ``they will wish to marry, and are to be condemned because they have broken their first promise.'' They are here condemned not for marrying, but for wishing to marry.

It is not marriage in general, or even these marriages in particular, that are condemned. He condemns the denial of their dedication, and condemns the broken faith of their vow. It is not choosing a lower good that is condemned, but falling from a higher good. They are condemned, not because they later embrace conjugal fidelity, but because they brake their earlier pledge of continence. As the Apostle briefly suggests, he does not want people to consider those condemned who marry after dedication to greater sanctity, not because they are not condemned, but because he does not want to suggest that marriage itself is condemned.

So, when he said, ``they will wish to marry,'' and adds immediately ``and are to be condemned,'' he then explains why, ``because they have broken their first promise.'' This shows that their desire to abandon their dedication is condemned, whether they later marry or not.

§2. Some say that these marriages are not marriages but adulteries. I do not consider this a correctly considered opinion. They have mistaken the appearance for the truth. They, who decide not to marry for the sake of Christian holiness, are said to choose marriage to Christ. So one can argue that if a woman married to one man marries another, she becomes an adulteress, just as the Lord declared in the Gospel [Mark 10:11]. Now Christ lives, because death no longer has power over him [Rom. 6:9], so the one who chooses him in marriage, if she marries a man, becomes an adulteress.

§3. Some consider this argument subtle but point out an absurdity that follows. It is praiseworthy for a woman, while her husband is alive, to vow continence to Christ with his consent [1 Cor. 7:5]. But, by the logic of the previous argument, none should do this, lest Christ himself commit adultery (something immoral even to think) because she is marrying him while her husband is alive. But, since marriage to Christ is of greater merit than human marriage, far be it that Christ is like a widow's second husband. For (while they were faithfully subject to their husband) they already had Christ as a husband, not carnally but spiritually. This is because the Church, whose members they are, is Christ's Bride.

In the fullness of Faith and Love, not only sacred virgins, but all the married faithful compose that one virgin. For it was to the entire Church, whose members all are, that the Apostle said [2 Cor. 11:2], ``For I betrothed you to one spouse, that I might present you a chaste virgin to Christ.'' He, whom his mother bore from her own flesh without corruption, has himself taken that virgin as his bride without any scent of corruption.

§4. But, because of this poorly considered opinion, some think that, because of their holy dedication, fallen women can form no union if they marry, and are then adulteresses, not wives. Since they want to separate them and return them to continence, they say that their husbands are also adulterers, if they take other women while their wives are still alive.

§5. Therefore I will not say whether it is adultery or marriage when men marry women who have fallen from their higher dedication [cf. C. 27 q. 1 c. 21]. But I do not hesitate to say that, when women fall from the holier chastity they have vowed to God and are ruined, this is worse than adultery. Just as (about this there is no doubt), when one member brakes faith with her husband, this offends Christ, would it not offend Christ even more if she broke faith with him who had merely requested her offering? So then, when someone refuses to perform what she vowed, not after a command but only after counsel, the sin of breaking this vow is greater because the requirement of making the vow was less.




Also, Gelasius [in his letter to the bishops of Lucania and the Abruzzi, c. 23]:



C. 42.

On widows who have broken their first pledge of faith.

We have spoken long enough above about widows who are veiled without a blessing. If by their own free will they then spurn the chastity of this immaculate marriage because of their own instability, they run the danger that the Lord will demand satisfaction from them. As the Apostle says [1 Tim. 5:12], ``They have broken their first promise.'' For, according to the Apostle [1 Cor. 7:9], those unable to be continent, were not forbidden to marry. So they should plan with forethought how they will keep the pledge of purity they have made to God. We do not lay traps for them, rather we are thinking of their eternal reward and pointing out the penalty of divine judgment. Thus our conscience is clear, and they are accountable to God for their actions.

What St. Paul the Apostle testifies [1 Tim. 5:12] about their habits and actions should be observed. We have explained this more fully, not to deter unstable women, but to admonish them.




Also, Theodore:

C. 43.

The same.

If anyone makes a vow of virginity, etc.(2)

Gratian: The preceding authorities command those who have made vows to separate form each other, but the authority of Augustine [C. 27 q. 1 c. 41], Theodore [D. 27 c. 3; C. 27 q. 1 c. 43], and the capitulum on the ordination of clerics [D. 27 c. 9] clearly show that their marriages are not dissolved.






§1. The passage from Innocent [C. 27 q. 1 c. 10], where sacred virgins who marry publicly are forbidden admission to penance as long as the men they married are alive, should not be interpreted as excluding them merely for some period if they do worthy penance. After the dedication of sacred religion, one cannot be reconciled to God through penance, unless one takes up again the habit of one's profession.

When she has then withdrawn from his unlawful embraces, the man to whom she joined herself is dead. This is the meaning of the capitulum [C. 27 q. 1 c. 10], ``Those who have married Christ spiritually, if they later marry publicly, may not be admitted to penance, unless those to whom they have joined themselves leave the world.'' This should be understood as, ``leave those they married.'' When people leave the world they die, because they have separated themselves from its desires. So they are said to be ``dead to the world,'' since they are no longer trapped by its allurements. Likewise, the world is dead to one who desires nothing of the world.

The same Innocent shows that this interpretation is correct in the following example [C. 27 q. 1 c. 10]: ``Whoever marries another while her husband is alive is an adulteress, and may not do penance until one of the two husbands has died.'' This woman is understood to have been abandoned, but if she marries another, she is an adulteress. She cannot be admitted to penance until her first husband returns to the dust from which he was made, or the second becomes dead to her by leaving their relationship, as was explained above. Therefore, because Christ, whom the vowed spiritually marry, died only once, and death no longer has power over him [Rom. 6:9], the only possibility is for the second man she married to become dead to her.

In both cases, it must be understood this way, lest it contradict the Lord who spoke through the prophet [cf. Ez. 33:12], saying, ``In what day soever the sinner shall turn to me . . .'' This is the way any text that appears to contradict the divine law must be treated. The capitulum concerning the religious [C. 27 q. 1 c. 27], who had taken a husband and was not allowed to enter penance until both professed continence or the man she had married left the world, also proves this.



QUESTION II

Part 1.

Gratian: The second question is whether girls betrothed to one man can renounce this previous arrangement and transfer their vows to another. Two issues must be examined. First, whether a marriage exists between them; and second, whether they can withdraw from each other.

§1. That they are married is easily shown both by the definition of marriage and the authority of many. Nuptials, or marriage, is the union of a man and woman who keep an undivided way of life, and between whom there was consent [Instit. 1.19.1]. The later is the efficient cause of matri-mony, according to saying of Isidore [cf. C. 27 q. 2 c. 6], ``Consent makes marriage.''

Also, John Chrysostom, on Matthew:

[C. 1.]

Not intercourse, but the will makes a marriage. The separation of bodies does not dissolve it, only the separation of wills. Thus he who dismisses his spouse and does not take another is still married. Although he is now separated in body, he is still joined in will. Then, when he takes another, he fully dismisses the first. So the one who dismisses does not commit adultery, but only the one who takes another.

Also, Pope Nicholas:

[C. 2.]

For the union of a man and woman, their consent by itself is sufficient, according to law. If it is lacking, all other ceremonies, even with intercourse itself, are in vain.

[Gratian:] Since there was consent between them, and this by itself can make a marriage, it is plain that they were married. But what kind of consent makes a marriage? Consent to cohabitation, consent to carnal union, or both? If consent to cohabitation by itself makes marriage, then a bother can contract marriage with his sister.

If consent to carnal union by iteself, then there was no marriage between Mary and Joseph. Mary had vowed to remain a virgin, for she said to the angel [Lk. 1:34], ``How shall this happen, since I do not know man?''that is, ``I do not intend to know man.'' For a question about how she could have a son would make no sense if she had merely not yet known man, but only if she intended never to know man.

§1. If she consented to carnal union later, contrary to her vow of virginity, she would then be guilty of violating the vow in her mind, even if she had not yet violated it by a deed. It is wicked to admit this possibility, as Augustine says:

[C. 3.]

The Blessed Mary intended in her heart to keep her vow of virginity, although she did not express that vow of virginity with her mouth. She subjected herself to the divine plan, intending to keep herself a virgin, unless God revealed otherwise to her. Therefore, subordinating her virginity to the divine plan, she consented to carnal union, not seeking it, but obeying divine inspiration. After she had born her son, she told her husband with her lips what she had intended in her heart, and then both preserved their virginity.

§1. Therefore, consent to cohabitation and the keeping of an undivided way of life makes them married. An undivided way of life means that she can hold nothing back from her husband about herself, and vice versa. Thus an undivided way of life demands that, without the consent of her lawful husband, she could not take time away from him for prayer or profess continence. Since this kind of consent existed between them, it is plain that they were married.

[John Chrysostom, that is, the author of the Incomplete Work on Matthew, Sermon xxxii:

[PALEA. C. 4.

[Whatever results from a certain cause ends with the same cause. Not intercourse, but will, makes marriage, so division of bodies does not end it, but only division of wills [cf. C. 27 q. 2 c. 1]. Thus he who dismisses his spouse but does not take another is still married. Although separated in body, he is still joined in will. If he then takes another, he has fully dismissed the first. Thus one who merely dismisses a spouse does not commit adultery, but only the one who takes another.]







Gratian: Also, authority proves they were married, for Ambrose, in his book, On Virginity, [vi], says:

C. 5.

A conjugal contract, not the deflowering of virginity,

makes a marriage.

When a marriage is initiated, the name of marriage is given to it. Not the deflowering of virginity, but the conjugal contract, makes a marriage. When one is united to a man there is marriage, not when there is mere intercourse with a him.

Also, Isidore, in Etymologies, IX, vii:

C. 6.

After the first pledge of betrothal they are called spouses.

They are truly called married after the first pledge of betrothal, although conjugal intercourse is as yet unknown to them.

[PALEA. C. 7.

[That an condition imposed has no effect is proved from the African Council.]

[PALEA. C. 8.

[The same.

[When one is betrothed to someone conditionally, and afterwards wishes to leave her on that account, we say that the condition has no effect, and the betrothal must be held as unbreakable.]

Also, Augustine, in On the Good of Marriage, [I, xi]:

C. 9.

The same.

One is called a spouse after the first pledge of betrothal, even before one has been known by intercourse. If one who was not known should die, the name of spouse would not be a lie, even though there had not been then, or at any other time, any carnal intercourse. Because of marital fidelity, both deserve to be called Christ's parentsnot only his mother, but also his father, because he was the mother's spouse. Both were spouses through intention, although not through the flesh.

Also, Augustine, in the same [book and chapter]:

C. 10.

The parents of Christ possessed the threefold

good of marriage.

Therefore, the whole good of marriage was complete in the parents of Christfidelity, sacrament, and offspring. The offspring was the Lord himself; fidelity because there was no adultery; sacrament because there was no divorce. Only nuptial intercourse was lacking, because with sinful flesh this could not have occurred without the shameful fleshly concupiscence that results from sin, and he without sin wished to be conceived without that.




Gratian: Also, in Leviticus [i.e. Deut. 22:25], the Lord commanded Moses, saying, ``If a man find a woman that is betrothed in the field, he alone shall die, because he has violated another's wife.''

§1. Also, in the laws of princes [Cod. 5.9.2], a betrothed is ordered to mourn the death of her betrothed as that of her husband.

Also, it is found in the canons:

C. 11.

A brother may not take his brother's betrothed after his death.

If someone is betrothed to a woman and, because of his death, he does not know her, his brother cannot take her as a wife.



Also, Gregory to the Emperor Maurice, concerning a certain count who took as wife a woman betrothed to his deceased nephew:

[C. 12.]

If one has taken in marriage a girl betrothed to his neighbor, let him and all those consenting be anathema, because God's law decrees that he should die [Deut. 22:23-25].

§1. Divine law customarily calls betrothed persons married, as in the Gospel [Mt. 1:19], ``Take to you Mary your wife,'' and again in Deuteronomy [cf. 22:25], ``If a man find a woman that is betrothed in the field, or any place, and taking hold of her, lie with her, or has abducted her to his home, he alone shall die, because he has violated the wife of his neighbor.'' That woman was not yet a wife, but was to be given as a wife by her parents.

§2. And below: Just as it is unlawful for any Christian to marry someone consanguineous, or anyone whom a cognate has had, so he cannot marry those consanguineous to his wife [cf. C. 35 qq. 2-3].



Also, Jerome:

C. 13.

If a wife dies, her husband may lawfully take another, but not one repudiated or betrothed.

There is also a fourth lawful marriage. If the wife of someone has died, it is lawful for him to take another who is free, but not one who has been repudiated or betrothed to someone. A woman may do so similarly. Hence Paul says [Rom. 7:2], ``For the married woman is bound by the law while her husband is alive.'' Therefore, while her husband is alive, she is an adulteress if she unites with another man. But, if her husband dies, she is freed from the husband by law, and thus is not an adulteress if she takes another husband.

Also, Gregory:

C. 14.

After the a wife's death, one may not take a spouse from those consanguineous to her.

If a man has betrothed a wife or given her a pledge, and her death prevents him from taking her to wife, it is unlawful for him to take anyone consanguineous to her in marriage. If this has happened, let them by all means be separated.

Also, Pope Julius:

C. 15.

The same.

If any man has betrothed a wife or given her a dowry, and her death or some other intervening event makes it impossible for him to know her, neither his surviving brother, nor anyone consanguineous to him, may ever take her as wife.

Part 2.

Gratian: These authorities all prove that they were married. But Augustine testifies to the contrary, saying:

C. 16.

Those who not joined by a sexual intercourse

have not entered marriage.

There is, I say, no doubt that a woman has not entered marriage, if there has been no sexual intercourse.

Also, Pope Leo:

C. 17.

A woman has not entered matrimony if the nuptial mystery has not been consummated with her.

Since the marriage community was so instituted from the beginning that, without sexual intercourse, marriage does not contain the Sacrament of Christ and the Church, there is no doubt that a woman who has not experienced the nuptial mystery has not entered marriage.

[Benedict, Servant of the Servants of God, to the Patriarch of Grado. Greetings . . .

[PALEA. C. 18.

[A law of divine enactment has set the Apostolic See as teacher of the whole world, so that it may give a answer to all doubts that arise anywhere. One of your subjects, by the name of John, who speaks on behalf of his surviving daughter's marriage, has addressed the holder of this See in writing. Her dead sister was betrothed by words alone to a certain young man named Stephen, but, before she could undergo the marriage ceremony, she died. Can the surviving sister celebrate marriage with the same young man or not? Testimony before us shows that this question is in dispute. With God as our teacher, we shall now give it an answer.

[Our archetype, who is our root and origin, seeing the woman formed from his own rib, proclaimed with a prophetic spirit, among other things [Gen. 2:24], ``Wherefore a man shall leave father and mother, and shall cleave to his wife, and the two shall be one flesh.'' These words show that a man and woman cannot become one flesh unless they join together in carnal union. It is inconceivable for us that a man, who never had intercourse with woman in nuptial union, could became one flesh with her through the mere words of betrothal. Blood relationship is stated by words, but not made by words. Nor does a kiss create the relationship, because it involves no mixing of blood.

[Since John's case is like that, and he now wants to give his second daughter in marriage to the same man he betrothed the first to, we declare, with the sanction of Apostolic Teaching, that this may be done without stain of crime if it suits the involved parties.

[Why should something be prohibited when Holy Scripture does not prohibit it? Nor do the worldly laws enumerating persons between whom marriage may not be contracted say anything about this kind of marriage. So, you now should not forbid what you now know there is no reason to forbid.]






Gratian: Also, the Apostle [1 Cor. 7:3] commands that a wife render the debt to her husband and the husband to his wife, except for short periods by mutual consent, so that they more appropriately engage in prayer. Hence it is understood that, without the consent of one, it is unlawful for the other to go off and pray. Also, the husband cannot make a vow of celibate life without his wife's consent, and vice versa.

Hence Gregory writes, to Theutista Patricia, [in [Register], IX, xxxix]:

C. 19.

Marriages should not be dissolved for the sake of religion.

Some say that marriages should be dissolved for the sake of religion. One should recognize that, although human law permits this, divine law prohibits it. He who is Truth itself says [Mt. 19:6], ``What therefore God has joined together, let not man put asunder.'' He also says [Mt. cf. 19:9], ``It is not lawful to dismiss a wife, except on account of fornication.'' Who, then, would contradict this law-giver? We know that it is written [Gen. 2:24], ``The two shall be one flesh.'' If husband and wife are one flesh, and the husband dismisses his wife for the sake of religion, or the wife dismisses the husband, yet one spouse remains in the world, or perhaps wanders off into illicit activities, what kind of oblation is this? One and the same flesh will be partly continent and partly polluted.

But if both agree to lead a continent life, who will dare to blame them, since Almighty God, who permits the lesser good [1 Cor. 7:8-9], does not prohibit the greater? Holy people abstain from what is lawful for two reasons: to increase their merits before Almighty God, and to cleanse the faults of their past life.

§1. Hence, when good married persons want to increase their merits or cleanse the faults of their past life, it is lawful that they bind themselves to seek a better way of life. Many of the saints first led a life of continence with their spouses, and then adopted a rule of the Holy Church.

But when a wife does not practice continence along with her husband, or the wife does but the husband refuses, the marriage cannot be divided, for it is written [1 Cor. 7:4], ``The wife does not have power over her own body, but the husband; and similarly the husband does not have power over his body, but the wife.''



The same, to Leo, bishop of Catania, [in [Register], III, xxxiv]:

C. 20.

A wife assigned to a monastery without her husband's consent is not prohibited from returning to his company.

Many have told us that there was once a custom among you, that subdeacons might lawfully have intercourse with their wives. That no one should again presume to do this, a servant of God, a deacon of our See, acting with authority from our predecessor, prohibited this. That same prohibition allowed those joined to wives to choose one of two courses: they were either to stop practicing their ministry, or to abstain from their wives. As was said, Speciosus, then a subdeacon, suspended himself for this reason from administering his office, and fulfilled the office of notary until his death. He stopped performing the ministry essential to the exercise of the subdeaconate.

After his death, his widow, Honorata, was united with a husband, but we have learned that Your Fraternity has assigned her to a monastery. But, if, as reported, her husband suspended himself from administration, there is no objection to the said woman passing to second vows of marriage, especially if she had not joined the subdeacon in intending to abstain from the pleasures of the flesh. So, if what we have heard is true, it is by all means fitting that you release the said woman from the said monastery, so that she can return unhindered to her husband.



The same, to Adrian, a notary of Palermo, [in [Register], IX, xliv]:

C. 21.(3)

He who received the religious habit without his wife's consent should be compelled to return to her.

Agatha, the bearer of the present letter, has complained that her husband has become an oblate in Abbot Urbicus' monastery against her will. Therefore, we command Your Prudence to inquire diligently and discover whether he became an oblate with her consent and whether she promised to became an oblate too. If so, make him stay in the monastery, and compel her, as she promised, to become an oblate as well.

If this was not the case, and the said woman has not committed any crime of fornication (for which one can lawfully dismiss a wife [Mt. 5:23]), we command as follows: you must return her husband to her, even if he is now tonsured, without any delay, lest the her husband's oblation, which left his wife in the world, become an occasion of perdition.

Although secular law [Nov. 123.58] allows a marriage to be dissolved so that one spouse may become an oblate, even against the other's will, divine law does not permit this. A husband may dismiss his wife for no reason except fornication. Thus, after husband and wife have become one body [Mt. 19:6] through conjugal intercourse, neither can become an oblate while the other remains in the world.



Also, from the Seventh Synod:

C. 22.

A husband cannot make a vow of religion without

his wife's consent.

If a married man wishes to become an oblate in a monastery, he may not be received unless he is first freed by his spouse's profession of chastity. For, if she marries another out of incontinence while he is alive, she is without a doubt an adulteress. God will not accept the man's oblation if this is followed by prostitution of the conjugal bond. Having left the world, they will both follow Christ without fault if they mutually consent to chastity.

Also, from a synod of Pope Eugene [II, in the Roman Synod, c. 36]:

C. 23.

Without the bishop's knowledge, a husband and wife may not lawfully divorce for the sake of religion.

If a husband and wife mutually agree to divorce for the sake of a religious life, this cannot be done without the bishop's knowledge. For he must set them up in a place particularly provided for them. If the wife or husband does not consent, then the marriage cannot be dissolved.

Also, Augustine, in On Adulterous Marriages:

C. 24.

A husband may not lawfully practice continence without his wife's consent.

If you abstain without your wife's consent, you give her permission to fornicate, and her sin will be imputed to your abstinence.

Also, Gregory to Abbot Urbicus, [in [Register], V, xlix]:

C. 25.(4)

A husband cannot be received into a monastery unless his wife becomes an oblate.

Because this bearer of the letter to Agatha wishes to enter Your Charity's monastery as an oblate, we exhort you to receive him with all generous consideration.

§1. Know, however, that he can be received only if his wife similarly wishes to become a oblate; for once two have become one body by conjugal intercourse, it is unfitting that one party become an oblate and the other remain in the world.

Also, Pope Nicholas [to King Charles]:

C. 26.

It is not lawful to accept a wife's vow of continence unless her husband chooses the same life.

Queen Theberga wrote us that she wishes to leave her rank and marriage to be content with a private life alone. We wrote to her that she could not do so, unless her husband, Lothar, chose the same life.

§1. Although it is written [Mt. 19:6], ``What therefore God has joined together, let not man put asunder,'' it is God, not man, who separates when, at the prompting of divine love, a marriage is dissolved with the consent of both spouses. Otherwise, we prohibit your mutual separation.

Gratian: Thus, one spouse cannot profess continence without the consent of the other. But, both examples and authorities show that betrothed persons may keep continence, even without consulting their betrothed. As St. Jerome narrates, the famous Christian hermit Macarius, on the evening he celebrated his wedding, after the wedding banquet, left the city, went overseas, and chose for himself the solitude of the desert.

§1. Also, Divine Grace likewise called St. Alexius, the son of the famous Epiphanius, from his wedding, and he deserted his betrothed, so that naked he could begin to serve Christ. These men's example plainly shows that the betrothed can profess continence, without getting their fiancees' consent.

The authority of Pope Eusebius proves this, saying:

C. 27.

A betrothed girl is not prohibited from choosing a monastery.

A betrothed girl's parents cannot lawfully give her to another man. But she may lawfully choose a monastery.

Also, Gregory, in his Register, [VI, xx, to Fortunatus]:

C. 28.

A betrothed girl can choose a monastery with impunity.

If a betrothed girl wishes to become a oblate, legal decrees provide that she cannot be lawfully punished.






Gratian: Married persons cannot offer continence to God without mutual consent, because not the husband but the wife has power over his body [C. 27 q. 2 cc. 19-26; cf. 1 Cor. 7:4]. But one betrothed person can choose a monastery and make a vow of a better life without consent of the other [C. 27 q. 2 cc. 27-28]. Thus there is plainly no marriage between the betrothed.

§1. Also, according to Augustine [C. 27 q. 2 c. 16], a woman with whom there has been no sexual intercourse has not entered matrimony. Also, according to Leo [C. 27 q. 2 c. 17], she has not entered matrimony, who has not experienced the nuptial mystery. Thus it appears there is no marriage between the betrothed.

§2. Also, Pope Nicholas [cf. C. 32 q. 7 c. 25] ordered that the marriages of those castrated by enemies or mutilated in their members not be dissolved on account of this disability.

§3. However, in the case of those unable to render the debt to their wives because of frigidity, Pope Gregory [C. 23 q. 1 c. 2] determined that such could take an oath on sacred relics, supported by seven oath-helpers, to prove that they had never become one flesh through carnal intercourse. The wife could then contract a second marriage, but the frigid husband would remain without hope of marrying.

Hence he wrote to Venerius, bishop of Cagliari, as follows:

C. 29.

If a woman proves that she was never known by her husband, let them be separated.




You have asked me about those joined in matrimony who cannot have intercourse: can he or she take another? About them, it is written [cf. C. 33 q. 1 cc. 1-2]: If a husband and wife are joined, and the wife later says that the husband is unable to have intercourse with her, and she can prove this to be true in a proper judicial investigation, let her take another man.



Gratian: So, if incapacity for intercourse occurs in someone after sexual congress, this does not dissolve the marriage. But if it occurs before sexual congress, it frees the wife to take another husband. Hence, they were not married. Otherwise, it would be unlawful for them to withdraw from each other, except for fornication, and they would also have to remain unmarried or be reconciled to each other if separated for that reason.

§1. Also, if a betrothed woman were married, she would be a widow if her betrothed died. If she were a widow, her second husband could not enter Holy Orders, for a widow's husband, just like one twice-married, is forbidden to become a priest [Titus 1:5-6]. Yet this kind of union prohibits no one from entering Holy Orders. As Pope Pelagius says [D. 34 c. 20], ``There is nothing in canonical legislation (as far as this item is concerned) which presents an obstacle.'' It appears, then, that they were not married.

§2. Also, if they were married, separation from each other would be divorce, but Ambrose denies that this separation is a divorce, when he says of the Blessed Mary, whom Joseph had betrothed and taken as his own, ``Joseph never knew her. For if a just man had known her, he would never have allowed her to leave him [Mt. 1:19]. Nor would the Lord, who ordered a wife not to withdraw from her husband, except for fornication, have made himself the author of a divorce by entrusting her to his disciple [John 19:26-27].''

So, separating Mary from Joseph and entrusting her to John was not divorce, because Joseph had not known her. Hence, they were not married. If the Blessed Mary, whom Joseph had betrothed and taken as his own, is not a spouse, how much less is one a wife who is merely betrothed?

Also, from the Council of Orleans:

C. 30.

A man polluting his wife's sister can have neither.

If someone sleeps with two sisters, one of whom is his wife, he may have neither of them, nor may the adulterers ever be joined in marriage.

Gratian: That is, it is unlawful for him to render the debt to his own wife, because he made this unlawful for himself by knowing her sister. Nor is it lawful, after his wife's death, for him, or the adulteress, to be joined in marriage with anyone.

As to a betrothed person, on the contrary, it says in the Council of Trebur:

C. 31.

On one who sleeps with his brother's betrothed.

If anyone has betrothed a wife and given her a dowry, but cannot have intercourse with her, and his brother secretly corrupts her and makes her pregnant, it is decreed that, although she could not have intercourse with her lawful husband, the brother still cannot have his brother's betrothed. Let both the adulterer and adulteress suffer the punishment for fornication, but they will not be denied lawful marriage.

Also, from the same:

C. 32.

If anyone violates his son's betrothed, let them both remain without hope of marriage.

If anyone violates his son's betrothed, and the son takes her afterwards, the father may not afterwards take a wife, nor the woman a husband. But the son, who was ignorant of his father's crime, may take another woman.

Gratian: If she who has been known by her sister's husband is forever prohibited from being married, but he who has corrupted his brother's betrothed is permitted to contract marriage when his penance is finished, it appears that the betrothed was not his brother's wife.

Also, a wife dismissed by her husband on account of fornication must either be reconciled to him or remain unmarried as long as he lives, But as to a betrothed, the contrary is found in Capitularies, I, where it reads:

C. 33.

If a betrothed will not receive her who was abducted, she may lawfully marry another.

An abductor is punished by public penance. If the betrothed refuses to receive one abducted, and she did not consent to the crime, permission to marry another should not be denied.

Also, from the Council of Toledo:

C. 34.

The same.

This sacred assembly decrees that, if someone abducts another's betrothed, he shall be punished with public penance and remain without hope of marriage. If she did not consent to this crime, permission for her to marry another should not be denied. If they later presume to marry each other, let both be anathematized until they make satisfaction.



Part 3.

Gratian: So it appears that she, who was not denied permission to marry another while her betrothed was alive, was not a wife. How then can Ambrose and other fathers speak of one betrothed as married, when all these arguments prove she is not married?

It must be understood that marriage is begun by betrothal and consummated by intercourse. Hence between the betrothed there is marriage, but only as to its beginning; between the joined, there is a ratified marriage.

Hence Ambrose:

C. 35.

Marriage is begun by betrothal.

One starts to be called married, when the marriage occurs, not when the man knows the woman through intercourse [cf. C. 27 q. 2 c. 5].

Gratian: So marriage begins, but is not completed, with betrothal.

Also, Ambrose, in On the Patriarchs, [I]:

C. 36.

Intercourse between the spouses completes marriage.

In every marriage there is a spiritual union that the couple's bodily intercourse confirms and completes.

Also, Jerome, on Obadiah:

C. 37.

Marriage, which is begun by agreement,

is completed by intercourse.

``Therefore shall your daughters commit fornication, and your spouses shall be adulteresses.'' [Hosea 4:13] Note that it speaks of coming fornication for the daughters, but of adultery for the married, because marriages are begun by the betrothal agreement but only completed by bodily intercourse.

Also, Ambrose to Paternus, [in Letter lxvi]:

C. 38.

When a spouse is given and taken to use she is rightly called a married woman.

When anyone has been betrothed, given, and enjoyed, it is called marriage.

Gratian: Augustine shows why one is not given immediately after the nuptial agreement, in Confessions, IV, [iii], where he says:

C. 39.

Why spouses are not given immediately after the agreement.

It is established that spouses are not given immediately after the agreement, because the husband will hold one so given cheap, but he will sigh after one who is delayed.

Gratian: This distinction explains the authority from Augustine [C. 27 q. 2 c. 16], ``There is, I say, no doubt that a woman has not entered marriage, if there was no sexual intercourse.'' This refers to the completed marriage, which contains the sign of Christ and the Church [cf. Eph. 5:32]. The passage from Pope Leo [C. 27 q.2 c. 17] should also be understood this way.

§1. But opposing this is the passage from Augustine [cf. C. 27 q. 2 c. 3], ``Between Mary and Joseph there was a complete marriage.'' But here ``complete'' is understood not as to the use of marriage, but as to those things that accompany it, that is, fidelity, offspring, and sacrament. The authority of Augustine proves that Christ's parents had all three. So all the texts brought forward for not breaking up a marriage must be understood to apply to a completed marriage, which was begun by betrothal and consummated by the use of bodily intercourse. Those texts which show a marriage to be separable apply only to a marriage that was begun, but not completed by its use.

§2. Another distinction can also be made. The Scriptures speak of the betrothed as married by reason of future hope, rather than present effect. Hence Ambrose, where he says [C. 27 q. 2 c. 5], ``When a marriage is initiated,'' does not then add that it has the substance or effect, but only, ``the name of marriage is given to it.'' Such are spoken of as being married, but they do not have the substance or effect. Also, Augustine, when he speaks of the Lord's parents, says [C. 27 q. 2 c. 9], ``Both were spouses through intention, although not through the flesh.''

So it is understood that, just as Joseph is called the Lord's father, not because he sired him, but because of his duty and care in providing for him, he is also called the Mother of the Lord's husband, not because of his use of marriage, but because he provided for her needs and gave her his undivided affection. Hence Augustine says [C. 27 q. 2 c. 9; Mt. 1:20], `` `Do not be afraid to take to you Mary your wife.' She is called a spouse because she was a future wife.''

Hence Bede says, on Leviticus [i.e. Deut. 22:25], `` `But if a man find a woman that is betrothed . . ,' speaks of a betrothed as a wife not because she is one, but because she is a future wife.''

Hence Jerome, on the Gospel of Matthew [1:18], ``When she had been betrothed'':

C. 40.

The Scriptures customarily speak of the betrothed as married.

``He begot Joseph, the husband of Mary.'' [Mt. 1:16] When you hear ``husband,'' do not think they were already married, because the Scriptures customarily speak of betrothed men as husbands and betrothed women as wives.

§1. And below: She was not found so [Mt. 1:18] by anyone except Joseph, who knew all things on account of the marital permission of his future wife.

§2. And below: ``. . . Joseph, son of David . . .'' [Mt. 1:20] Now, as said above, betrothed women are called wives, as the book Against Helvidius more fully explains.

The same, on Genesis:

C. 41.

The same.

``So Lot went out, and spoke to his sons-in-law that were to have his daughters.'' [Gen. 19:14] What follows speaks of Lot's daughters as virgins. He himself said to the Sodomites [Gen. 19:8], ``I have two daughters who have as yet not known man . . .'' But it says that he had sons-in-law. Some think the daughters with husbands perished in Sodom, and those who were virgins escaped with their father. But the true Hebrew text says, ``Lot went out and spoke to the betrothed,'' and, from what follows, this seems correct, because they were to receive his daughters.

Gratian: Hence it is understood that Scripture speaks of betrothed men as sons-in-law.

Also, John Chrysostom, on the same Gospel:

C. 42.

Mary is called a spouse because of the custom of Scripture, although she was only betrothed.

``Before they came together.'' [Mt. 1:18] It does not say before she had been brought to her betrothed's house. For antiquity had the custom of keeping betrothed women in the homes of their betrothed. Thus Lot's sons-in-law lived with their father-in-law [Gen. 19], although they were not united to their betrothed by the law of marriage. So Mary lived with her betrothed.

§1. And below: He did not wish to expel her from his house, but to dismiss her [cf. Mt. 1:19].

§2. And below: ``Do not be afraid to take to you Mary your wife.'' [Mt. 1:20] So by that word he indicated a betrothed, just as Scripture customarily speaks of those still betrothed as sons-in-law. But what is it ``to take''? Assuredly to keep her in the house, for he had intended to send her away.

§3. And below: As Christ afterwards committed her to his disciple, the angel now joins her to her betrothed, not in the solemn union of marriage, but in the union of a common dwelling.



The same, on the same, [in Homily v, on Matthew 1]:

C. 43.

The Lord would not have committed his mother to his disciple if Joseph had known her.

If he had known her and held her as his wife, why would the Lord have committed her to his disciple [John 19:26-27], commanding him to receive her into his own house, as if she lacked support and had absolutely nothing?



And Origen, on the same, [in Homily i, on the Gospel]:

C. 44.

Mary is called Joseph's wife because he thought of her as his future wife.

``She was found to be with child.'' [Mt. 1:19] She was found by St. Joseph, who, although he did not touch her, knew everything about her whom he considered his future wife.

§1. And below: Although she is called your wife, although she is said in betrothal to be yours, yet she is not your wife, but rather forever the Mother of the Only Begotten God.

§2. And below: I then speak of her as ``wife'' to hide her virginity from the Devil, lest I destroy the purpose of the Law.(5) In the following, I shall show that she is not your wife according to the custom of marriage, nor is he who will be born your son.




Also, Gregory, in his exposition of the Gospel(6) which begins ``When it was late that same day,'' [in Homily xxvi]:

C. 45.

Joseph's marriage with Mary was not complete.

After his resurrection, he permitted his disciple to doubt, but he did not leave him in his doubt [John 20:24-29], just as before his birth he wished Mary to have a betrothed, who would not, however, complete his marriage with her. So it happened that the disciple, doubting and afraid, became the witness to the true Resurrection, as the mother's betrothed became the guardian of her most perfect virginity.



Gratian: From foregoing it appears that the betrothed are called married because of future hope, not because of present reality. But how can they be called married from the first pledge of their word if one betrothed is not married? One is called a spouse from the first pledge of his word, not because one becomes married through the betrothal, but because the fidelity, which each gives the other by their word, will later render them married. In the same way, sins are said to be remitted through Faith, not because they are remitted through faith before Baptism, but because Faith causes us to be cleansed of sin in Baptism.

§1. This interpretation should be given to the passage from John Chrysostom [C. 27 q. 2 c. 1], ``Not intercourse, but will, makes marriage,'' as well as the passage from Ambrose [C. 27 q. 2 c. 5], ``Not the deflowering of virginity, but the conjugal contract makes a marriage.'' Neither intercourse without intention to contract marriage, nor deflowering without a conjugal agreement, make marriage. Rather the preceding intention to contract marriage and conjugal contract bring it about that the woman, in the deflowering of virginity or intercourse, marries the man, or celebrates marriage.

§2. Also, Pope Siricius [C. 27 q. 2 c. 50] calls it a conjugal separation when betrothed withdraws from betrothed. But this withdrawal is a violation, not of a presently existing marriage, but of the future marriage one expects because of the betrothal. Likewise, one says that the devil fell from blessedness, not only because he then possessed it, but also because he was created to possess it. Likewise, one chosen for the priesthood or episcopacy because of his way of life or knowledge, who then deserves to have the choice cancelled, is said to lose his priestly or episcopal anointing, not because he already had it, but because he had been chosen to receive it. Therefore, this authority does not prove that someone betrothed is married.

§3. So, if it is granted that one betrothed is not married, one must still ask whether she may lawfully renounce this first relationship.

Now the Council of Ancyra, [c. 11], prohibits this, where one finds the following legislation:

C. 46.

Betrothed girls are to be returned to their first betrothed if they are abducted.

We have decreed that betrothed girls, whom others have abducted, should be returned to those whom they first betrothed, even if the abductors used force on them.

Also, John VIII, to the archbishop of Rostan:

C. 47.

A betrothed girl will be deprived of Communion, unless she consents to leave her abductor and return to her betrothed.

Atto, the bearer of the present letter, complains that, while he was faithfully acting in our service, a certain man abducted the woman betrothed to him. So Your Fraternity, supported by our authority, will summon your suffragan bishops into your presence. Then, by unanimous sentence, you will deprive the abductor of Communion if he refuses to restore the man's betrothed to him, and the woman abducted if she will not return to her first betrothed.

Part 4.

Gratian: But, to renounce one's prior relationship is one thing, to enter marriage another, and to be abducted, that is, to be unlawfully debauched, is yet another.

Hence Isidore, in Etymologies, V, xxiv, says:

C. 48.(7)

What abduction is.

Abduction (raptus) is unlawful intercourse, named from its being a seduction (corruptus). Hence, he who abducts engages in debauchery.

Gratian: But we were not speaking of one abducted by another, but one betrothed to another.

And Pope Gelasius forbids calling such a one abducted, saying:

C. 49.(8)

Abduction occurs when a girl is carried off, concerning whose marriage nothing had been previously arranged.

The law of earlier princes [Cod. Theo. 9.24.1 pr.] said that abduction was committed when a girl was carried off, concerning whose marriage nothing had been previously arranged.

Part 5.

Gratian: The conclusion of the chapter [C. 27 q. 2 c. 46], ``even if the abductors used force on them,'' was added because some women collude with their abductors, while others are abducted by force. So, whatever the manner of their abduction, they are to be restored to the first betrothed.

But we were speaking not of one who was abducted, but of one betrothed a second time. Thus, she should not to be removed from the second and returned to the first.

§1. The following authorities prohibit her from marrying the second, and order her to fulfil her first vow.

Hence Pope Siricius says to Himerius, bishop of Terracona, [in Letter i, 4]:

C. 50.

A man cannot receive a girl betrothed to another.

You have asked whether it is violation of marriage for a second man to receive a girl betrothed to another in marriage. We anathematize such a marriage and in every way prohibit it, because the nuptial blessing imparted by the priest will become a sacrilege for the faithful if it is violated by any transgression.

Gratian: But the authority of Siricius prohibited one who has been taken, veiled, and blessed with her betrothed in her own home from passing to second vows. The couple's separation violates the blessing imparted to them by the priest when they were to be married. But this woman's betrothed had not yet taken her as his own, or received the blessing with her. Therefore this authority does not prohibit her union.

§1. Also, that from Pope Eusebius [C. 27 q. 2 c. 27], ``A betrothed girl's parents cannot lawfully give her to another man,'' should likewise be understood as concerning a betrothed who was veiled and blessed with her betrothed in the same way.

§2. Also, that from Gregory [cf. C. 33 q. 1 c. 2], ``Whoever is separated from her husband because of frigidity and married to another, must be taken from the second and returned to the first if her husband knows another woman,'' contradicts this. But this is solved in the same way, because she had received the blessing with him.

[Augustine, on a word of agreement and of consent:

[PALEA. C. 51.

[If anyone has given his promise of consent to a woman, he may not lawfully take another.

[We speak of two types of promise, that of contract and that of consent. If anyone gives a woman the promise of contract, he ought not take another. If he takes another, he ought to do penance for his broken word, but let him remain with the woman he took. Such a great Sacrament ought not to be rescinded. But, if he gave the promise of consent, he may not take another. If he did take another, he must send her away and adhere to the first.

[``The promise of contract occurs when someone promises another that he will take her or agree to take her, if she allows him to have an affair with her. But promise of consent occurs when, even without joining hands, he consents with heart and mouth to take her, and they mutually give and receive one another.'']








CASE TWENTY-EIGHT



Gratian: A certain married unbeliever converted to the Faith. But his wife, from hatred of Christianity, left him. He took a certain believer as a wife, and when she died, he became a cleric. At length, because of his merits of life and knowledge, he was chosen for the episcopate. It asked here:

First, is there marriage between unbelievers?

Second, is it lawful for him to take another wife while the first is still alive?

Third, should one who had a wife before baptism and another after baptism be regarded as twice-married?



QUESTION I

Part 1.

Gratian: Many authorities prove that no marriage exists between unbelievers. Paul says [Rom. 14:23], ``All that is not from faith is sin.'' So, since the union of unbelievers is not from Faith, it is sin. Thus it is not marriage, because no marriage is sin.

Also, Augustine [cf. C. 28 q. 1 c. 9 pr.], ``An unbeliever has no true modesty with his wife.'' Also, Ambrose, ``Ezra [10:10] commanded the dismissal of foreign wives, because they were leading them off to foreign gods. That which transgresses the ordinance of God cannot be considered marriage. Rather when it occurs, it must be corrected.'' Also, Augustine, ``There is no ratified marriage without God.'' All these authorities prove that there is no marriage between unbelievers.

§1. On the contrary: There are other authorities that prove there is marriage between unbelievers. The first of these is the Gospel [Lk. 12:52], where Christ says, ``For henceforth in one house five will be divided, three against two, and two against three.'' There, enumerating these persons, he says that the wife will be divided against the husband, and conversely. Also [cf. Lk. 14:26], ``If anyone does not hate his father and mother, and wife and sisters, on my account, is not worthy of me.'' He says that one should hate an unbelieving wife, not a believing one. Also [cf. Mt. 19:29], ``Everyone who has left house, or father, or mother, or sisters, or wife, shall receive a hundredfold.'' Here he refers to leaving an unbelieving wife for the sake of Christ, for one should desert her, rather than the Faith of Christ.

Also, the Apostle [1 Cor. 7:12-14], ``If any brother has an unbelieving wife and she consents to live with him, let him not send her away. And if any woman has an unbelieving husband and he consents to live with her, let her not put away her husband. For the unbelieving man is sanctified by the believing wife, and the unbelieving wife is sanctified by the believing husband.'' Also, to Titus [cf. 2:4], ``Train the younger women to love their husbands.'' This applies to both believers and unbelievers, because believing women should be ready to serve their unbelieving husbands for God's sake, that they gain their husbands for Christ. One reads in the Passion of the St. Clement that this happened miraculously in the case of Theodora and Sisinnius.

Also, Pope Innocent to Rufus and Eusebius, bishops in Macedonia, [in Letter xxi, 2]:

C. 1.

They are proved to be twice-married, who have one wife before baptism and another after.

Will those born to the wife before baptism not be admitted to a joint share of the inheritance? Shall they be called natural, because it seems that no marriage is lawful except one entered after baptism? The Lord himself, when asked by the Jews if it was lawful to send away a wife, said it could not be done, and added [Mt. 19:16], ``What God has joined together, let not man put asunder.'' Do not imagine that he was speaking about wives taken after baptism, for the Jews had asked him this, and he was replying to the Jews.

I ask, and ask persistently: if a man, who once was a catechumen and afterwards a believer, had the same wife before and after, and he had children with her while a catechumen and other children while a believer, should they be called brothers? And when their father dies, do these not have a joint share of the inheritance with the others, or does his spiritual regeneration deprive them of the name of children? Such conclusions and ideas would be absurd.

Since the Law forbids calling what God has joined a sin, what argument could justify such a outrage, which is supported not by authority, but erected on an idle opinion?

Part 2.

Also, from a decree of Pope Eutychian:

C. 2.

After baptism a believer can receive a wife whom he had previously sent away.

If a Gentile sends away a Gentile wife before Baptism, he may decide, after Baptism, either to have her or not have her.

C. 3.

A believer is not compelled to follow an unbeliever who leaves him

Similarly, if one of two married persons is baptized, and the other remains a Gentile and refuses to stay, as the Apostle says [cf. 1 Cor. 7:15], the unbeliever should be allowed to leave if the unbeliever decides to.

Also, Augustine, in On Faith and Works, [xvi]:

C. 4.

A wife is abandoned without fault when she refuses to live with a believer.

A Christian husband may, without fault, abandon a wife joined to him in lawful union if she refuses to live with him. But note that her husband can likewise send her away if she tells him, I will not be your wife unless you accumulate riches for me from robbery, or unless you continue while a Christian to pander in our house as you did before. It is likewise, if she demands something criminal or licentious of her husband, which had previously delighted her, satisfied her lust, brought she an easy living, or allowed her to make a splendid show.

A man whose wife acts this way, if he has truly done penance from dead works [Heb. 6:1], when he approaches baptism and acquires a foundation of Faith working through love [cf. Gal. 5:6], will undoubtedly be moved more by the love of Divine Grace than the lechery of the flesh, and will courageously cut off the member that scandalizes him.

The same, in On the Lord's Sermon on the Mount, I, [xxvii-xxviii]:

C. 5.

A wife who forces her husband to evil is lawfully sent away.

The idolatry that unbelievers practice, and every harmful superstition, are fornication [cf. Ez. 6:9]. Now, the Lord permitted a wife to be sent away on account of fornication [Mt. 5:32]. But, by permitting and not commanding it, he gave the Apostle [1 Cor. 7:15] an opportunity to advise one who was willing not to send away his unbelieving wife so that she might become a believer.

§1. Also, [xxviii]: If unbelief is fornication, idolatry unbelief, and avarice idolatry [Col. 3:5], there is no doubt that avarice is fornication. So, can anyone really remove any unlawful concupiscence from the genus of fornication if avarice is fornication? Thus it is understood that a husband can, without crime, send away his wife, and a wife her husband, because of any unlawful concupiscencenot just that expressed in sexual sins with other men or women, but any kind that leads the soul to use the body evilly, to stray from the law of God, and to be harmfully and shamefully corrupted.

When the Lord makes the exception for fornication considered above, we must understand fornication in its general and universal sense. When he said [Mt. 5:32], ``except on account of fornication,'' he did not say whose, the husband's or the wife's. One may not only send away a wife who fornicates, but one sending away his wife because she compels him to fornicate also does so ``on account of fornication.'' For example, when a wife compels one to sacrifice to idols, he who sends her away on account of fornication does so, not only on account of her fornication, but also on account of his own; on account of her's because she fornicates, of his, lest he fornicate.

The same, in On Adulterous Marriages, II:

C. 6.

Let a husband send one away who makes an image and refuses to abandon it.

One does not commit adultery only when one stains one's flesh; one also commits adultery when one makes an image [Hos. 4:13]. If she persists in this activity, and refuses to do penance, leave her and do not live with her. Otherwise, you will participate in her sin.

Also, Ambrose to Hilary:

C. 7.

One should not desert the Faith out of love of anyone.

``If the unbeliever,'' says the Apostle [cf. 1 Cor. 7:15], ``departs, let him depart. For a brother or a sister is not under bondage in such cases.'' That is, if an unbeliever refuses to live with his believing spouse, let the believer know his liberty. He ought not think himself subject to such bondage that he lose the Faith rather than the unbelieving spouse.

This also applies to children, parents, brothers, and sisters. They should be sent away on account of Christ, if they require one to abandon Christ in order to live with them. This also applies to homes, fields, and anything possessed by the right of property.

Also, Augustine to Pollentius, [in On Adulterous Marriages, xiii-xiv]:

C. 8.

Unbelievers are married, and it is lawful for a believer to send away an unbeliever.

Let us now turn to the Apostle's statement [1 Cor. 7:12], ``To the others I say, not the Lord.'' This certainly refers to a marriage of unequals, where not both parties are Christians.

I once though he wrote this as counsel for Christians. Since a Christian spouse could lawfully leave a non-Christian, the Lord then did not forbid it, but the Apostle did. What the Lord forbids can never be done lawfully. The Apostle counsels believing spouses to forego their freedom to leave their unbelieving partners, because they will thereby have a great opportunity to win souls for Christ.

You, however, think that believers may not put away unbelievers because the Apostle forbids it. But I say this is lawful, because he does not forbid it. The Apostle proposes that it is not expedient, when he advises against it. He gives us the reason it is not expedient, although it may still be lawful. He says [cf. 1 Cor. 7:16], ``For how do you know, O wife, whether you will save your husband? Or how do you know, O husband, whether you will save your wife?'' Besides, he said earlier [cf. 1 Cor. 7:14a], ``For the unbelieving husband is sanctified by the wife, and the unbelieving wife is sanctified by the husband''that is to say by a Christian husband. He also said [1 Cor. 7:14b], ``Otherwise your children would be unclean, but, as it is, they are holy.'' Accordingly, from the preceding texts, it appears that he urged them to win their partners and children for Christ.

So, the reason it is not expedient for the faithful to put away even unbelieving spouses has been clearly stated. The Apostle forbids separation from unbelievers, not in order to preserve the marriage bond with them, but so that they may be brought to Christ.

As a matter of fact, many things should be done, not under the prescriptions of the Law, but under the free impulse of Love. Such actions are more meritorious than those which duty prescribes, because, as it is lawful not to perform them, we perform them out of Love. Thus, in former times, the Lord himself paid the tribute, after showing he did not owe it, lest he give scandal to those for whose salvation he assumed a human nature.

It shows how much the Apostle approved the Savior's words, when he says [1 Cor. 9:19]: ``For, free though I was to all, unto all I have made myself a slave, that I might gain the more converts.'' For he had said just before [1 Cor. 9:4-7]: ``Have we not a right to eat and to drink? Have we not a right to take about with us a woman, a sister, as do the other Apostles, and the Brethren of the Lord, and Cephas? Or is it only Barnabas and I who have not the right to do this? What soldier ever serves at his own expense? Who plants a vineyard and does not eat of its fruit? Who feeds the flock, and does not eat of the milk of the flock?'' And he says a little later [1 Cor. 9:12], ``If others share in this right over you, why not we rather? But we have not used this right, but we bear all things, lest we offer hindrance to the gospel of Christ.''

Also, [in the same book, xviii-xxi]:

C. 9.

One may abandon an unfaithful spouse,

but it is not expedient.

So the Lord does not forbid believing men and women from abandoning unbelieving wives or husbands, but neither does he command this [1 Cor. 7:13-15]. If he had commanded them to dismiss such spouses, there would be no reason for the Apostle to counsel against it. The Lord's servant could not command what the Lord had prohibited.

Also: When the Gospel was first preached to the Gentiles, the Gentiles were still joined to their Gentile spouses. If both did not believe, and one of the two remained an unbeliever, but was willing to live with the believer, it would not have been right for the Lord to forbid or command the believer to dismiss the unbeliever.

He would not forbid it because justice permits leaving a fornicator, and an unbeliever is a great fornicator in his heart, he does not practice true modesty with his spouse, and everything that is not from Faith is sin. This is so, even if the faithful spouse practices true modesty with the unfaithful one who does not. But he did not order believers to separate from unbelievers, because when they were both unbelievers they had not joined together contrary to the Lord's command.

§1. Therefore, the Lord neither forbids or commands a believer to leave an unbeliever. Not the Lord, but the Apostle [1 Cor. 7:12], having the Holy Spirit by which he gave useful and faithful counsel, said he should not leave. Then, when he spoke of a woman whose husband had died, he said [1 Cor. 7:40], ``She will be more blessed, in my judgment, if she remains as she is.'' But lest this be taken as divine counsel rather than human, he added [1 Cor. 7:40], ``I think that I also have the spirit of God.''

So it is understood that one, who is not commanded by the Lord but persuaded by his holy servant's advice, has been persuaded by the Lord's inspiration. May there never be any Catholic who would suggest that the Holy Spirit rather than the Lord did the persuading, since the Holy Spirit is Lord and cannot be separated from a work of the whole Trinity.

The Apostle says [1 Cor. 7:25], ``Concerning virgins, I have no commandment of the Lord, yet I give an opinion.'' Then, so that we would not think that his counsel was contrary to the Lord, he immediately follows this up by saying [1 Cor. 7:25], ``as one having obtained mercy from the Lord to be trustworthy.'' In accord with God, he is giving faithful counsel by the same Spirit in which he said [1 Cor. 7:40], ``And I think that I also have the spirit of God.''

§2. The authority of God's command is one thing, his servant's faithful counsel given out of the merciful love that the Lord had given and inspired in him, is another. Something that is permitted in one case, but not in another, is different indeed from what is always permitted, but sometimes expedient and sometimes not. Something expedient is permitted, both because of its justice before God, and because it imposes no impedient to people's salvation. So, when the Apostle [1 Cor. 7:26-27] counsels virgins (about which he says he has no command from the Lord) not to marry, he permits something, that is, marrying and giving in marriage, which is a lesser good than continence.

What he permits is even expedient, because honest marriage prevents the weakness of the flesh from falling into forbidden and unlawful things. So marriage hinders no one's salvation, although it would have been more expedient and would have brought greater purity if the virgin had done what he merely counseled and did not impose as a precept. On the other hand, something lawful may not be expedient, as when something permitted robs one of one's own powers and becomes an impediment to another's salvation.

An example (we shall expand on this later) of this is when a believing spouse abandons an unbeliever. The Lord did not forbid this, because in his sight it was not contrary to justice. The Apostle, however, did forbid it as a counsel of love, because it would block the conversion of unbelievers, not only by giving horrible scandal to those offended, but also because they would fall into other marriages, while those who had dismissed them were still alive. And from those adulterous liaisons they would be extricated only with difficulty.

§3. So, because here a lawful act is not expedient, one does not do well to dismiss an unbelieving spouse, for one does better not to dismiss him. This is like the passage [cf. 1 Cor. 7:38], ``He who gives in marriage does well, and he who does not give in marriage does better.'' Not just one, but both these courses, are equally lawful (as there is no precept from the Lord commanding either), and both are expedient. But one is more expedient and the other less. Thus Apostle counsels choosing what is more expedient.

When it comes to dismissing or not dismissing an unbelieving spouse in order to seek a believing one, both courses are lawful because both are just before God, and thus the Lord forbids neither. But, because of human weakness, they are not both expedient. So the Apostle forbids what is not expedient. The Lord has given him freedom to prohibit, for the Apostle can warn against something the Lord does not forbid, and the Apostle can forbid what the Lord does not command. If that had not been so, the Apostle could not have warned against something that the Lord had not prohibited, nor could he forbid what the Lord had not commanded.

§4. Now in these two cases, that of marrying or not marrying and that of dismissing or not dismissing an unbelieving spouse, what the Apostle says is both similar and different. It is similar when he says, in one case [cf. 1 Cor. 7:25], ``I do not have a commandment of the Lord, yet I give an opinion,'' and in the other [cf. 1 Cor. 7:12], ``I say, not the Lord.'' ``I do not have a commandment of the Lord,'' is like, ``the Lord does not say,'' and, ``I give an opinion,'' is like, ``I say.''

It is a different, because when he speaks of marrying and not marrying, he can say that it is better to do one than the other, because, although both are expedient, one is more so and the other less. But when he speaks of a believing spouse dismissing or not dismissing an unbelieving one, one cannot say that the one who dismisses does well, while the one who does not does better, because one of these is expedient, while the other is not. It can be said that the believer should not dismiss the unbeliever because it is not expedient. Therefore we can say that it is better not to dismiss an unbelieving spouse, although it is permitted. On the other hand, we properly speak of something licit and expedient as better than something licit but not expedient.

§5. For this reason, while I was expounding the sermon which Lord propounded at length on the Mount, when he came to the question of putting away or not putting away wives, I referred, not to the Lord's command, but to a passage from the Apostle. This said [cf. 1 Cor. 7:12], ``Otherwise I say, not the Lord,'' and then warned them not to dismiss unbelieving spouses who were willing to live with them. Now that was a warning, not a command, because one cannot forbid something licit, no matter now inexpedient, in the same way one might forbid something illicit.

Now, if the Apostle elsewhere styles as a warning something that is really a command, he does this out of consideration for human weakness, not in order to void the commandment. Thus he said [cf. 1 Cor. 4:14], ``I write these things not to put you to shame, but to admonish you as my dearest children,'' which is like saying, ``I say, not the Lord.'' So he also said [Gal. 5:2], ``Behold, I Paul tell you that if you be circumcised, Christ will be of no advantage to you.'' Can you contrast that with, ``it is I who say, not the Lord''? The two are not the same, although it is not unworthy or contradictory for the Apostle to give warnings about things that the Lord has commanded.

We warn those dear to us to obey the Lord's precepts and commands. For, when he said, ``I say, not the Lord,'' that it was enough to show that the Lord did not forbid what he forbad. If the Lord had forbidden something, it would have been illicit. Therefore, as we said above and often reiterated, it was licit in light of justice. But what was licit was not to be done, out of uncompelled benevolence.

§6. Now you say that something that, not God, but the Apostle has forbidden is illicit in the same way as something the Lord himself has forbidden. So you would explain the words [cf. 1 Cor. 7:12], ``I say, not the Lord,'' which were addressed to those believers who had unbelieving wives, as meaning that the Lord had commanded them not to join in marriage with those of another religion. Then you bring forward the passage where the Lord says [cf. Deut. 7:3-4], ``You shall not give your son to a foreigner's daughter, for she will turn away your son to serve stange gods, and he will lose his soul.''

You then add the Apostle's words, where he said [cf. Rom. 7:2], ``A married woman is bound by the law while her husband is alive; but if her husband die, she is set free and may marry whom she likes, but only in the Lord.'' You interpret that to mean that she can marry only a Christian. Then you go on to conclude that this is a precept in both the Old and New Testaments. The Lord commands and the Apostle teaches that a marriage should stand only if both are of the same religion and faith.

Now then, was it contrary to the Lord's precepts, Sacred Doctrine, and the precepts of the Old and New Testaments that the Apostle commanded those of different faiths to keep their marriages? Paul the Apostle, the Preacher to the Gentiles, not only warned but also commanded those engaged in marriage that, if ether of the spouses were a believer, he was not to leave a unbeliever who was willing to live with him [1 Cor. 7:13].

From your own words you can see that the first text is different from the second. The former concerned spouses who were never joined at all, because the woman could not marry a man of a different religion, nor could the man have married such a woman. This (you say) is what the Lord commands, the Apostle teaches, and both Testaments impose.

Who would deny that it is a different thing to speak of those who will be joined and those who have already been joined? Both were in the same unbelief when they were joined. Then the Gospel arrived, and he without her, or she without him, believed. If it were otherwise (and about this there is no hesitation of doubt), why would it not be lawful for the believer to remain with the unbeliever, unless the Lord had commanded it as the Apostle did? Or is what is missing from the passage what the Apostle so faithfully said [2 Cor. 13:3], ``Do you seek a proof of the Christ that speaks in me?'' At any rate, Christ is the Lord.

§7. Do you understand what I am saying? Or must I take some time to explain it a little further? Pay attention, and I will put what needs to be explained into plainer language, so the sense becomes obvious. See, there were two spouses, both of whom had been unbelievers when they were joined. There is no question that it is the Lord's command, Apostolic Teaching, and a precept of the Old and New Testaments, that a believer cannot join in marriage with an unbeliever. They were already spouses when they were both still unbelievers, and now they still are as they were before they were joined and when they were joined. Then a preacher of the Gospel came and one of them, either he or she, believed, but the unbeliever was willing to live with the believer.

Does the Lord command the believer to dismiss the unbeliever or not? If you say that he did not command this, then Apostle replies, ``I say, not the Lord.'' If you say that he commands it, then I want to know the reason. You cannot say to me, as you did in your letters, that the Lord forbids believers to marry unbelievers. That has nothing to do with this case. We are speaking about those already married, not those yet to be married. You then cannot show why the Lord does not forbid what the Apostle prohibits. (You have already seen, I think, that this is not as you thought it was.)





Part 4.

Gratian: To the contrary, is the Fourth Council of Toledo, [c. 62]:

C. 10.

Unless a Jew adheres to the Faith, let him be separated from his believing wife.

The bishop of the city should warn Jews who take Christian women in marriage that they must become Christians if they intend to live with them. If they refuse after being warned, let them be separated, because an unbeliever cannot stay united to one who converts to the Christian Faith.

Children who are born under such circumstances follow the Faith and condition of their mother. Likewise, those born to unbelieving women and believing men follow the Christian religion, not the Jewish superstition.



Gratian: This is so established, lest the believer, who sought the unbeliever's salvation, perish in unbelief along with the unbeliever. So the same council [c. 59] legislated that children of Jews and other converts to the Faith should avoid unbelievers' company:

C. 11.

Let believers be separated from their relatives' company, lest they be ensnared by error.

We decree that the sons and daughters of Jews be separated from their company, lest they become ensnared again in error. They are to be assigned to monasteries or God-fearing Christian men and women, so that they learn faithful worship under their influence and advance in morals and belief under their preferable instruction.






Also, [from the same, c. 61]:

C. 12.

Jews who accept the Faith should not associate with unbelievers.

As evil company often corrupts good morals, how much more might it corrupt those prone to vice? So Hebrews who convert to the Christian Faith are not to associate with those who still practice their old worship, lest they be subverted by associating with them. Should any of those baptized not avoid unbelievers' company and still present themselves as Christians, let them be publicly cut off.

Also, the Sixth Synod, [c. 11]:

C. 13.

None may eat, live, or receive medical treatment with Jews.

Let neither clergy or laity eat their unleavened bread, live with them, call them in when they are sick, receive medicine from them, or wash with them at the baths. If anyone does this, let him be deposed if a cleric, and excommunicated if a lay person.

Also, from the Council of Adge [c. 40]:

C. 14.

Let clerics and laity avoid association with Jews and not keep company with them.

So let clerics and laity neither associate with Jews or keep company with them, because, as they do not eat Christian food, it is unworthy and sacrilegious for Christians to eat their food. Otherwise, they will condemn as unclean what the Apostle [cf. 1 Tim. 4:1-5] permits to us, and Christians will start to appear inferior to Jews, because we take the food they offer us, while they refuse what we offer them.

Part 5.

Gratian: The foregoing plainly indicates that marriage exists between unbelievers. The Apostle's words [Rom. 14:23], ``Whatever is not of Faith is sin,'' do not mean that everything unbelievers do is sin, but that everything done against conscience prepares for Hell. Hence Ambrose, ``Everything done otherwise than as approved is sin.''

§1. Also, Augustine on the same text [cf. d. G. a. C. 28 q. 1 c. 1], ``Everything done otherwise than as approved is sin. Yet not everything done with Faith is good. Culpable ignorance is injurious.'' Hence, the Apostle also says [Rom. 14:22], ``Blessed is he who does not condemn himself by what he approves,'' that is, he who does not damn himself when he says what is right.

Or, everything not of Faith is called sin because whatever is not done from Faith availing to salvation is accounted useless before the Lord. Hence Augustine says, ``The whole of an unbeliever's life is sin, and what is done without God does not count as good, for where knowledge of eternal and unchangeable Truth is lacking, the best morals are but false virtue.''

§2. Also, when he says [d. G. a. C. 28 q. 1 c. 1; cf. C. 28 q. 1, c. 9 pr.], ``The unbeliever does not practice true modesty with his spouse,'' the modesty is not true as to its effect, that is, as to the reward of eternal salvation. Just as among heretics the sacraments are not true, not as to their form, but as to their power, so the virtues among unbelievers are not true, not because they are not true in themselvesfor Jerome said, ``The Romans obtained the empire by their virtues''but because they do not bring about eternal salvation.

§3. Also, the words of Ambrose [d. G. a. C. 28 q. 1 c. 1], ``That which transgresses the ordinance of God cannot be considered marriage. Rather when it occurs, it must be corrected,'' does not prove there is no marriage between unbelievers. No command of the Lord prohibits Gentiles from joining Gentiles. Their marriage, therefore, does not transgress God's ordinance, that is, contravene it. That authority orders the separation of those joined contrary to the ordinance of God and the Church, such as unbelievers with believers, blood relatives with blood relatives, or those impeded by affinity with each other. If any of these join with each other, they must be separated.

Hence Ambrose, in the book On the Patriarchs, [I, ix, on Abraham]:

C. 15.

Believers should not associate in marriage with unbelievers.

Beware, Christian, of giving your daughter to a Gentile or a Jew. Beware, I say, of marrying a Gentile, a Jew, or a foreigner, that is, a heretic or someone not of your Faith. The first fidelity in marriage is the grace of chastity.

§1. That she is a Christian is not enough, unless you have both been initiated through the sacrament of Baptism. You should both rise together in the night for prayer and beseech the Lord with mutual entreaties.

Also, from the Council of Agde, [c. 67]:

C. 16.

Catholics may not enter marriages with heretics.

One must not enter marriage with a heretic, nor may sons or daughters be given them. Do take them, however, if they promise to become Catholic Christians in the future.

Also, from the Council of Auvergne:

C. 17.

One who associates with Jewish error through the marriage bond is to be deprived of Christian Communion.

If anyone joins himself by conjugal association to Jewish error, any Christian woman has carnal intercourse with a Jew, or any Jewish woman with a Christian man, and then admits this immorality, let him be separated immediately from Christian assembly and fellowship and the Communion of the Church.

Gratian: Also, Augustine's words [d. G. pr. a. C. 28 q. 1. c. 1], ``There is no ratified marriage without God,'' do not deny the existence of marriage between unbelievers. A lawful but unratified marriage is one thing, a ratified but unlawful marriage is another, and a lawful ratified marriage is yet another.

A lawful marriage is contracted according to the legal institutions or the customs of the region. Among unbelievers, this is not ratified, because their marriages are not permanent and exclusive. Before their legal forum, after giving a bill of repudiation, they can lawfully separate and join others, something contrary to the Law of Heaven, which they do not observe.

Marriage between believers is ratified, because once they enter a marriage, it cannot later be dissolved. Some of these are lawful, as when a wife is given by her parents, receives a dowry from her spouse, and is blessed by a priest. This kind of marriage is called lawful and ratified. The marriages of some, who eschew solemnities and take a spouse through consent alone, are not lawful marriages, but merely ratified.





QUESTION II

Gratian: That one may not lawfully take another while one's wife is alive is shown by the text(9) that says, ``If you separate from each other and send the other away, because you want to live with another, and then unite with another, you will be adulterers, and your children born afterwards will be unclean, that is, illegitimate.''

Also, from the Council of Meaux, [c. 1]:

C. 1.

One may not take another wife after Baptism, if the virgin married before Baptism is still alive.

If one married a virgin before baptism, one cannot take another wife after baptism if she is alive, for Baptism wipes out sins, not marriages.

But Gregory testifies to the opposite, saying:

C. 2.(10)

A believer may lawfully take another wife if an unbeliever dismisses him out of hatred for the Christian Faith.

``If the unbeliever departs out of hatred for the Christian Faith, let him depart.'' [cf. 1 Cor. 7:15] For a brother or sister should not be subject to such bondage. If one is dismissed on account of God, it is no sin to marry another. Contempt for the Creator dissolves the rule of matrimony for the one abandoned.

The unbeliever, however, sins against God and matrimony by separating. Nor need one keep faith with the spouse who separates, although he will not learn that Christ is the God of Christian spouses.




Gratian: Here a distinction is necessary. It is one thing to send away a spouse willing to cohabit, and another not to follow one who separates. One may lawfully dismiss one who wishes to cohabit, but while that one is alive, one may not lawfully take another. But one need not follow one who separates, and one may lawfully take another, even if that one is alive.

This applies only to those who joined each other while unbelievers. Otherwise, if both convert to the Faith, or both were joined in matrimony while believers, one should not follow another who abandons the Faith and his spouse, out of hatred for the Faith. But, while that one lives, the believer cannot take another, because they had a ratified marriage, which is absolutely indissoluble.








QUESTION III

Gratian: The authority of Jerome resolves whether one who has one wife before Baptism and another after Baptism is accounted twice-married. He says on Paul's [First] Letter to Timothy:




C. 1.(11)

He who has one wife before Baptism and another after Baptism is not twice-married.

A bishop must be the husband of one wife [1 Tim. 3:2], but this means after Baptism. Otherwise, if he had one wife before Baptism and another after Baptism, he would be accounted twice-married. He has been made new in all respects through baptism; all old things are put away.

Augustine and Innocent, however, testify to the contrary. Augustine says on Paul's Letter to Titus:

C. 2.

He who had one wife before baptism and another after baptism cannot be made a bishop.

They are more correct who believe that he who had another wife before Baptism should not be ordained, for crimes are abolished in Baptism, but the bond of marriage is not dissolved. So, just as a woman, who was seduced while a catechumen, cannot become one of God's consecrated virgins, so he who had one wife before baptism and another after baptism must be considered twice-married [cf. D. 26 c. 1; C. 28 q. 1 c. 1]. He would be deficient, not as to merit of his life, but as to the sacramental sign.

Gratian: Also, Innocent [C. 26 q. 1 c. 1; cf. C. 28 q. 3 c. 1], writing to Bishops Rufus and Eusebius, proves by many arguments that such a man must be accounted twice-married.

Therefore, the man considered here is adjudged twice-married, for he had one wife before Baptism and another after Baptism. So, although he enjoys merit of life and is proficient in knowledge, he still cannot be ordained a bishop.






CASE TWENTY-NINE


Cuidam nobili mulieri nunciatum est, quod a filio cuiusdam nobilis petebatur in coniugem; prebuit illa assensum. Alius uero quidam ignobilis atque seruilis condicionis nomine illius se ipsum obtulit, atque eam in coniugem accepit. Ille, qui sibi prius placuerat, tandem uenit, eamque sibi in coniugem petit. Illa se delusam conqueritur, et ad prioris copulam aspirat.

Hic primum queritur, an sit coniugium inter eos? Secundo, si prius putabat, hunc esse liberum, et postea deprehendit, illum esse seruum, an liceat ei statim ab illo discedere?

It was announced to a certain noblewoman that a certain nobleman's son asked for her hand in marriage. She consented. But a non-noble of servile condition offered himself in the first man's name and took her as wife. He, to whom she had first consented, arrived and asked her hand in marriage. She complained that she had been deceived and wanted to marry the first man.

It is first asked here, were the servile man and the woman married?

Second, if she first believed a man was free, and later discovered he was servile, could she lawfully leave him forthwith?

Sankt Gallen, Siftsbibliothek 673, p. 170 (C.26)

Nobili cuidam mulieri insinuatum quod a quodam nobili in coniugem peteretur.  Assensit et illa.  Quidam vero ignobilis et servilis conditionis illius nomine se optulit et eam in coniugem accepit.  Qui primus petierat modo venit eamque in coniugem petit.  Cum queritur illa se delusam et ad illum aspirat.

Vnde queritur an inter eos sit coniugem?  Secundo, si cum putaret hunc esse liberum quem mox deprehensum habet servum esse an statim ab illo discedere possit?

QUESTION I

Gratian: That they were married is proved this way. Marriage is the union of a man and woman keeping an undivided way of life [Instit. 1.9.1.]. Mutual consent makes marriage. Those, therefore, who join in order to keep an undivided way of life, consenting to each other, are married.

§1. Reply to this: Consent occurs when two or more perceive the same thing [Dig. 2.14.1]. He who is in error, however, does not perceive the same thing. So he cannot consentthat is, agree to the same thing as another. So, one who errs does not consent. Thus she was not married, because both did not consent to the same thing, and that is necessary for marriage.

Someone errs in the same way when he is ordained by someone he believes to be a bishop, but who is really a layman. He is not ordained and must still be ordained by a bishop. She erred in his way and thus was not united in marriage, but rather yet be united.

§2. On the contrary: Not every error eliminates consent. One who takes a wife, thinking her a virgin, or one who takes a prostitute, thinking her chaste, errs because he thinks a corrupted woman is virgin, or because he accounts a prostitute as chaste. But did they not consent to these women? Does either man have the option of sending the woman away and taking another?

In fact, not every error excludes consent. Error as to person is one thing, error as to fortune another, error as to condition another, and error as to quality yet another. Error as to person occurs when one thinks someone is Virgil when he is Plato. Error as to fortune occurs when one thinks someone is rich when he is poor, or conversely. Error as to status occurs when one thinks someone is free when he is of servile status. Error as to quality occurs when one thinks someone is good when he is bad. Error as to fortune or quality does not exclude consent to marriage.

If one agrees to sell a field to Marcellus, and Paul later arrives saying that he is Marcellus and buys the field from him, did he agree on the price and sell the field to Paul? Also, if one promises to sell me gold, but gives me yellow ore in place of gold, and thus deceives me, did I consent to the yellow ore? I never wanted to buy yellow ore, and at no time did I consent to it, because consent cannot exist without the will.

Just as error as to the matter here excludes consent, so error as to person does in marriage. He did not consent to this woman, but to the woman he thought this woman was.

§3. Objection: Jacob did not consent to Leah but to Rachel [Gen. 29:9-30]. He served seven years for Rachel. So, when Leah was put in with him, but he did not know it, there would have been no marriage if error as to person excluded consent. For, as was said, he did not consent to her, but to Rachel.

Response: Antecedent consent is one thing, subsequent consent another. Antecedent consent would be consent to both an undivided way of life and to fleshly intercourse. Subsequent consent occurs when, after sexual relations during concubinage or fornication, they both consent to the former as well. Antecedent consent did not make Jacob and Leah husband and wife, but subsequent consent did.

But they are not to be adjudged fornicators because of their intercourse, for he knew her with marital affection, and she rendered the debt to him with marital affection, thinking she was rightly joined to him, on account of the Law of the First Born and her father's command.

§4. A later authority [C. 34 qq. 1 & 2 c. 6] proves that error as to person sometimes excuses. When a wife's sister goes to the bed of her sister's husband (both the sister and the husband being unaware), and the sister's husband knows her, she loses perpetually the right of marriage, but he who knew her in ignorance is excused.

This is also proved in another way. The devil sometimes transforms himself into an angel of light [cf. 2 Cor. 11:14], but this error poses no danger to one who believes him to be good when he is posing as good. If, then he asked an unlettered person whether he wished to share his blessedness, and the latter replied that he wanted to associate with him, can one say he choose to associate himself in devilish damnation? Did he not, rather, choose to participate in eternal bliss?

Also, if a heretic came to some Catholic and convinced him to accept his beliefs as those of Augustine, Ambrose, or Jerome, did he consent to accept the man's belief? Should one not say rather that he consented, not to the heretical sect, but to integral Catholic Faith that the heretic falsely claimed to present?

Because this woman was deceived by error, she plainly did not consent to the latter man, but to the former man he falsely claimed to be. So she is not his wife.

§5. Error as to fortune or quality does not exclude consent. When one accepts the prelacy of a church he believes to be very rich, and it is less so, although he is in error as to fortune, he still cannot renounce the prelacy he accepted. Likewise, one who marries a pauper thinking him wealthy cannot renounce this relationship, although she did err.

Likewise, error as to quality does not exclude consent. When one buys a field or a vineyard, supposing it very fruitful, but errs as to the quality of the property and buys an infertile one, he still cannot rescind the sale. Likewise, one who takes as wife a prostitute or seduced woman, thinking her chaste or a virgin, he cannot send her away and take another.

QUESTION II

Gratian: The second question concerns condition. Can a woman lawfully send away a man she thought to be free if afterwards she discovers he was servile? Many arguments prove that the woman cannot lawfully leave the slave. In Christ Jesus, there is neither Jew nor Greek, slave nor free [cf. Col. 3:11]. Nor is there in Christian marriage, for same law rules all in the Faith of Christ.

The Apostle said to all without discrimination [cf. 1 Cor. 7:36], ``Whoever wishes to marry, let him marry in the Lord.'' And again [1 Cor. 7:39], ``Let a woman marry whom she pleases, only let it be in the Lord.'' He does not command a free woman to marry only a free man, or a slave girl only a slave, rather everyone may marry whomever he wishes, provided it is in the Lord.

Also, Pope Julius:

C. 1.

Slaves can lawfully contract marriage.

There is one Father in heaven for all of us. Each of us, rich or poor, free and slave, will equally render an account for himself and his soul. Therefore, we do not doubt that all, whatever their condition, are under one law before the Lord. If, however, all are under one law, then neither a free man nor a slave can be sent away, once he is joined in marriage.

Also, Pope Zacharias:

C. 2.

A man cannot lawfully send away a slave girl

he has taken in matrimony.

If any free man takes a slave girl in matrimony, and they were joined by mutual consent, he does not have license to send her away, except on account of fornication [cf. Mt. 19:9]. There shall be one law in all things, for the man and for the woman [cf. C. 29 q. 2 c. 5].

Also, Pope Julius:

C. 3.(12)

Lawful marriage certainly exists between a master

and a freed woman.

Some ask whether or not it is a lawful marriage if someone has given his slave girl her freedom and united with her in matrimony. We, therefore, resolve this ancient doubt and declare such marriages lawful. If marriage is entirely made by consent, there is nothing impious or contrary to the law in such a union. Why would we think that the said marriage should be prohibited?



Part 2.

Gratian: Reply to the foregoing: It is not denied that a free woman can marry a slave, but, if his servile condition was unknown, he can be freely put away when his servile status is discovered. What the Apostle [1 Cor. 7:39] and Pope Julius [C. 29 q. 2 c. 1] say should be understood to concern those whose condition was known to both.

The woman did not know this man's condition. Therefore, these authorities do not compel her to stay with him, so she is free to leave or stay with him.

Hence the Council of Verberie, at which King Pepin was present, legislated, at c. 6:

C. 4.

On one who takes a slave girl as a wife

thinking her to be free.

If any free man takes another's slave girl as his wife, thinking that she is free, and this woman is later discovered to be enslaved, he may redeem her from slavery, if he can. If he cannot, he may take another wife, if he wishes. But if he knew she was a slave, and still thought highly of her, he must later keep her as his lawful wife. A free woman must do likewise with another's slave.

Also, from the same, c. 8:

C. 5.

A woman cannot lawfully send a man away if she married him knowing he was a slave.

If a free woman takes a slave, knowing him to be slave, let her keep him, for we all have the same Father in Heaven. There shall be one law for the man and for the woman [cf. C. 29 q. 2 c. 2].

Also, Gregory, [in [Register], V, i, to Bishop Fortunatus]:

C. 6.

One who has proved himself free at law cannot be sent away because of servile status.

The bearer of this letter came here last year with her mother, compelled by litigation. Your Fraternity has prudently discovered that her husband, your priest, dismissed her from union with him because of her servile status. The woman and her mother assert that, in this case, you have promised, if she can with God's help prove that she is free, you will restore her marriage.

Let Your Fraternity know that, with God the Author of Freedom's guidance, she has proved that she is free, without any suspicion of slavery. Now that you know this, we order you to restore her to her husband without delay, and to prevent him from advancing other reasons to eject her. If you, contrary to our expectations, fail to do this, or he delays receiving her, know that we will correct it with severe punishment.



Gratian: When it says [C. 29 q. 2 c. 5], ``Knowing him to be a slave,'' it is understood that, if she did not know he was a slave, she would not be compelled to stay with him. So, when one is deceived as to person or condition, one need not adhere to the one through whose fraud one was deceived.

But, if she received a free man, and he, as an excuse to withdraw, made himself someone else's slave, he cannot send his wife away, nor can she be enslaved on account of the marriage bond.

Hence in the Council of Trebur:

C. 7.

A man who received a woman while he was free may not abandon her by means of a deceitful status change.

It has been reported to the Holy Synod that a certain free man received a free woman as wife and, after procreating children, he made himself another's slave to procure a divorce. It is asked if he must keep the woman, and, if he does keep her, must she also be enslaved, in accord with secular law.

It is decided that he may not send the woman away. Nor, in accord with Christ's law, should the woman be enslaved, because he made himself a slave without her consent, and she took him as husband when he was free.







Gratian: There is also a question as to whether there is a marriage if one man's slave takes another's slave girl.

Legislation of the [Second] Council of Châlons-sur-Saône, [c. 30], treats this:

C. 8.

The authority of their masters cannot annul the lawful marriages of slaves.

We have heard that certain men, with amazing presumption, annul the lawful marriages of their slaves, ignoring the words of the Gospel [Mt. 19:6], ``What God has joined together, let not man put asunder.'' So we declare that the marriages of slaves cannot be annulled, even if they have different owners. Rather, preserving the unity of marriage, let them serve their different owners. This is to be observed when the marriage is a legal union with the owners' consent.



CASE THIRTY



Gratian: The pressure of the crowd caused a certain man to receive his own son at Baptism, when he thought he was receiving the son of another.(13) His wife, designing to receive her own son, received someone else's, whom the husband later adopted as his own.

The wife gave birth to a daughter, and while the son and daughter were both in their cradles, the husband gave his daughter to his adopted son, who was also his wife's spiritual son.

Three years later the wife died and her co-parent, her husband, clandestinely betrothed himself to the widow of his wife's co-parent. After a while, another man publicly married her. It is asked:

First, may one render the debt to his wife if he receives their own son at Holy Baptism?

Second, can a betrothal be contracted between infants?

Third, can spiritual or adopted children marry natural ones?

Fourth, can someone lawfully take the wife of his wife's co-parent as wife?

Fifth, does a clandestine betrothal prejudice an open one?



QUESTION I

Part 1.

Gratian: Both reason and authority prove that, if someone receives his natural son as a spiritual son, he cannot render the debt to his wife. No authority allows someone to be joined carnally with a co-parent. The man caused his wife to become co-mother with him, so he now cannot have carnal intercourse with her.

Hence Deusdedit, bishop of the Holy Roman Church, wrote to his dear brother Gordian, a bishop in the Spanish Church:

C. 1.

Let husbands who, for any reason, present their own children to the bishop be separated from their wives.

A deacon came to us bringing Your Holiness' letter stating that last Easter certain men and women, because of the jostling of the crowd, did not realize that they were receiving their own children from the Holy Font. You wish to know whether after such an accident, the husbands and wives can enjoy the use of marriage or not.

To decide this, we reviewed what those earlier have said. We found, in the archives of the Apostolic See, that this once happened in the churches of Isauria and Ephesus, as well as in the church of Jerusalem and some others. The bishops of those cities asked this Apostolic See whether the husbands and wives could return to their marriage beds.

The Holy Fathers of blessed memory, Julius, Innocent, and Celestine, with the majority of the bishops and priests of the Church of the Prince of the Apostles concurring, prohibited this. They prescribed and established that husbands and wives who, for any reason, received their own children should under no circumstances enjoy their marriage rights. They should separate lest, under the influence of the Devil, this vice take root.

You know that, as the Holy Spirit has Seven Gifts, Baptism bestows seven things, from the placing of Blessed Salt in the mouth at the church door, up to the final Confirmation with Chrism. No Christian who presents a child for any of these seven may receive his co-parent in marriage, and whoever does so will be placed under the bond of anathema until he does fitting penance.

Also, from the Council of Verberie:

C. 2.

Let one who presents his son-in-law to the bishop be separated from his wife.

If someone presents his son-in-law or daughter-in-law to the bishop for Confirmation,(14) let him separate from his wife and never take another. Likewise for the woman.






Part 2.

Gratian: But Nicholas wrote the contrary to the bishop of Salona, saying:

C. 3.

She who washed her own stepson in the Sacred Font should not be separated from her husband.

You have asked whether a woman who washed the son of her husband and another woman can then have relations with her husband. We declare that they can do so, because, according to the sacred canons [cf. C. 27 q. 2 c. 23], one spouse cannot send away the other spouse under the pretext of religion without mutual consent.

The Apostle spoke of the enormous damage that a wife, who hated her husband or ignored his weakness, could cause out of piety or the pretext of piety. He commanded [1 Cor. 7:5], ``Do not deprive each other, except perhaps by consent, for a time, that you may give yourselves to prayer; and return together again lest Satan tempt you because you lack self-control.''

Therefore, if this happened without the spouses' mutual consent, they are not to separate, but to return to each other, for the Apostle says [1 Cor. 7:4], ``The wife has not authority over her body, but the husband; and the husband likewise has not authority over own body, but the wife.''

Also, from the [Second] Council of Châlon-sur-Saône:

C. 4.

Let her who deceitfully presents her own son to the bishop not be separated from her husband, but do penance.

We have heard that certain women have, through negligence or deceit, presented their own children to the bishop for Confirmation in order to separate from their husbands. We declare it fitting that, if any woman, through negligence or fraud, presents a child to the bishop for Confirmation, she do penance for the error or fraud as long as she lives; but she should not separate from her husband.

Also, from the Council of Metz, held in the cloister of St. Alban:

C. 5.

Let one who marries his spiritual daughter or spiritual mother be separated and punished with a severe penalty.

You have asked whether, if a man takes his goddaughter as wife, lies with his spiritual co-parent, or baptizes his own child, or if the man's wife receives their son from the font, intending thereby to dissolve the marriage, they can afterwards continue in such a union. For all these cases, we answer as follows.

If someone takes his goddaughter or co-parent in marriage, we judge that they are to be separated and punished with a severe penance. If one or both lawful spouses took their son from the fount intentionally and now wish to live as unmarried, that is good. But otherwise, a severe penance is to be imposed on a spouse who attempted this trick, and both are to remain together. If the spouse who attempted the fraud outlives the other, let that one be punished with stringent penance and forfeit the right of marriage.

Also, Pope Nicholas to Rudolph, bishop of Bourges:

C. 6.

Let those who present their stepchildren to the bishop not be separated from their wives.

As to those who present their stepchildren to the bishop for Confirmation, that is, those who bring their wives' children by former husbands, it is a sin if the bishop anoints their children with Chrismeven if it is, as you assert, done unknowingly. But it should not be punished to the extent of separating the spouses. Rather let them grieve and cleanse their sin by suitable penance, saying to the Lord [cf. Ps. 24 (25):7], ``The sins of my ignorance do not remember.''

Also, Pope John to Anselm, bishop of the church of Limoges:

C. 7.

He who, out of necessity, baptized his own son is not to be separated from his wife.

A man by the name of Stephen has arrived at the threshold of St. Peter, Prince of the Apostles, with a petition. He has informed Our Stewardship as follows: his son was near death and had not been cleansed by the water of Baptism, but no priest was present. Overcome, he baptized the child and received him with his own hands. Your Reverence heard of this and, burning with zeal for righteousness, you ordered the said man to be separated from his wife.

This was wrong, for the Scripture says [cf. Prov. 19:14] that a wife is joined to her husband by the Lord, and [Mt. 19:6], ``What God has joined together, let not man put asunder.'' Hence, in the Gospel [Mt. 19:9], the Lord clearly commands that a wife cannot be dismissed, except on account of fornication. We, bound by such an explicit command of such great authority, say that he should not be send away, but should be declared guiltless, because he was compelled by necessity.

Canonical authority freely grants the task of baptizing to faithful laymen if necessity requires it. Hence, if the said father, seeing his own son suffering bodily death, and refusing to allow his soul to perish in perpetual death, cleansed him with the water of Baptism, snatched him from the Author of Death and Darkness' power, and brought him to reign in Christ's Kingdom, he should be praised for this good act.

Therefore, we decide that, subjected to no punishment, he shall remain joined to his wife in lawful union as long as he lives. Nor shall he ever be separated for this reason, in contravention of the said divine authority.

Part 3.

Gratian: She is a spiritual daughter, not only of one who receives her, but also of one who dips her during the three-fold immersion of Holy Baptism. She also becomes the spiritual daughter of the priest to whom she confesses her sins. Intercourse between such persons is criminal and punished by the same penalty.

Hence Symmachus says:

C. 8.

The same penance is inflicted on one who violates his spiritual daughter and one who violates his penitent.

All whose we receive in penance are our spiritual children. So too, those whom we receive after regeneration through the cleansing of Baptism, or dip during the words of the triple immersion, are also our spiritual children.

Silvester instructs and admonishes every priest that no one attempt to fornicate with his penitent, as is written, ``All those we receive in penance are our children, just as those we receive in baptism.'' Therefore, if anyone commits this crime, he not only loses his rank of office, but he subjects himself to the yoke of penance until death.

Also, Celestine:

C. 9.

The same.

If any priest fornicates with a spiritual daughter, he has committed serious adultery. Therefore, if she is a laywoman, let her leave all things, give her property to the poor, and serve God as an oblate in a monastery until death.

The priest who presented this evil example to others is deprived of all rank and shall do fifteen years penance as a pilgrim. Then he shall enter a monastery to serve God for the rest of his life.

The same:

C. 10.

The same.

No bishop or priest is to have relations with women who have confessed their sins to him. If this should occur (and may it not), he shall do the penance for a spiritual daughterthe bishop for fifteen years, the priest for twelve. And let him be deposed, if it becomes public knowledge.

Gratian: These authorities all show that a woman should not be separated from her husband, whether she receives her own or her husband's child from the Sacred Font. The same applies to a husband.





QUESTION II

Gratian: Betrothals cannot be contracted before the seventh year. For they can be contracted only with consent, which requires each party to understand what they agree to. This proves that betrothals cannot be contracted between children, because the debility of age prevents consent.

Pope Nicholas witnesses to the same, saying:

C. 1.

Marriage cannot be contracted before the age of consent.

Where there is no mutual consent, there is no marriage. Therefore, to give boys to girls in their cradles, or vice versa, accomplishes nothing, even if the father and mother do it and desire it, unless both children consent after reaching the age of discretion.



QUESTION III

Part 1.

Gratian: That spiritual and adopted children cannot be joined with natural children, is shown by Pope Nicholas' Reply to the Questions of the Bulgarians, [c. 2], which says:

C. 1.

One received from the Sacred Font is the son of the one who receives him.

So, a man ought to love the child he receives from the font as a father would.

§1. Also: There is a free and holy communion between spiritual brothers and sons, which is a spiritual, not blood, relationship. Hence, I declare that there can be no legal marriage between them, just as the venerable laws do not permit natural and adopted children to contract marriages.

§2. Also: If marriage cannot be contracted between those joined by adoption, how much more must those bound through regeneration by the Holy Spirit in the Heavenly Sacrament refrain from fleshly union?

He is, I say, far more fittingly called my father's son and my brother, who has become the my father's son and my brother through Divine Grace, than he through human desire. So, we prudently prohibit such from intercourse with each other's bodies.

Also, Bishop Zacharias, Servant of the Servants of God, to the Most Reverend Theodore, bishop of the church of Pavia:

C. 2.

A spiritual daughter can in no way marry a fleshly son.

Your Venerable Fraternity has sent us a letter to ask us if a son can lawfully receive in marriage a girl that his father received at Holy Baptismthat is, to speak crudely, his father's spiritual daughter. You asserted that his has happened among you through an irregularity.

§1. Your Holy Fraternity knows well that the Lord commanded Moses [cf. Lev. 18:7-10], ``You shall not uncover the nakedness of your father, or the nakedness of your mother, or the nakedness of your sister; for it is your nakedness.'' So, as we are ordered to abstain from our blood relations, it is much more fitting that we also, without excuse or contradiction, refrain uncompromisingly from our father's spiritual daughter. Otherwise, we may fall under the wrath of divine judgment because someone, by committing such a crime, failed to control his lechery.

Hence, let all beware of such criminal intercourse, lest they perish eternally. But if someone, ignoring his soul's salvation, has, through pernicious negligence, entered such impious matrimony, Your Fraternity shall strive in every way to separate them, and to make them submit to appropriate penance. Thus you may achieve their souls' deliverance from eternal damnation.

Also, Zacharias and Deusdedit:

C. 3.

Let no one give a girl he has received from the Sacred Font to his son.

No one should give a daughter he has received from the Sacred Font to his own son in matrimony, because, by divine judgment, they are brother and sister. If someone has been involved in such a crime and failed to control his lechery, let him be abominated by the Catholic Church. But if he repents, let him do seven years penance after separation. The same provision applies to those who knew of this as well as the one who did it, that is, let him do penance along with those who cooperated or consented.

Part 2.

Gratian: Children born before or after co-parentage can be lawfully joined.

Hence Urban II writes to Vitale, a priest of Brescia:

[C. 4.]

``As to the matters on which Your Charity consulted us, we have declared in judgment that, if under necessity a woman baptizes a child in the Name of the Trinity, the spiritual parents' sons and daughters who were born before or after the relationship of co-parentage, can be lawfully joined, except to the one who makes them co-parents.''

But Pascal II prohibits the joining of those born after the relationship of co-parentage, writing to Bishop Reginus:

C. 5.

Those born to a co-father or co-mother, after their children were received from the font, cannot be joined.

After a spiritual son or daughter has been received from the font, those born to the co-mother or co-father cannot be joined in matrimony, because the secular law [Dig. 23.2.17] prohibits adopted children from being joined with unemancipated children.

[The same is gathered from Dig. 23.2.17, where it reads as follows:

[PALEA. C. 6.

[The siblinghood arising through adoption prevents marriage as long as the adoption lasts. So I can take as wife a girl whom my father adopted and then emancipated.

[Similarly, if I am emancipated while he still has her under his control, we can be joined in matrimony. Thus one wishing to adopt a son-in-law should emancipate his daughter. Similarly, one who wishes to adopt his daughter-in-law should emancipate his son.]

Part 3.

Gratian: If, in some chance case, one has taken his co-mother's daughter as wife, he is not compelled to send her away. Hence it reads in the Council of Trebur, [c. 48]:

C. 7.

One is not compelled to send away his co-mother's daughter if he has taken her in marriage.

We do not define it as canonical legislation, nor do we prevent it by similar prohibition, but, because some think differently on this, we are making a record of the following here. If someone, by chance or accident, has taken his spiritual co-mother's daughter in marriage, let him take mature counsel and decently maintain the lawful marriage.



QUESTION IV

Part 1.

Gratian: No one can take the widow of his wife's co-father in marriage.

Hence Pope Nicholas wrote to Constantine, bishop of Salona:

C. 1.

No one may lawfully have two co-mothers.

Your Holiness asked us if a man may marry two co-mothers, one after the other. On this, one must recall what is written [Gen. 2:24], ``The two shall be one flesh.'' So, since husband and wife become one flesh through marriage, a man is, by his marriage, certainly constituted co-father with a woman who is his taken wife's co-mother. Therefore, that man clearly cannot be joined in union with the woman who was his co-mother, since he would be made one flesh with her.



Also, from the Council of Chalcedon:

C. 2.

Let one who has intercourse with two co-mothers do penance for eight years.

According an old and more humane rule, if a father and son, or two brothers, have intercourse with one woman, or if someone does so with a mother and a daughter, or someone with two sisters, or someone with two co-mothers, they should do penance for eight years.



Also, Innocent II to Exsuper, bishop of Toulouse

C. 3.

Let no one have intercourse with two co-mothers.

If either spouse receives another's son or daughter from the Sacred Font, or presents him for Chrism, or initiates him into the Mystery of Christianity, both husband and the wife stand in the relation co-parent to the infant's parents, because husband and wife have been made one flesh.




Part 2.

Gratian: The contrary is found in the Council of Trebur, c. 47:

C. 4.

One can marry a co-father's wife if she is not

one's co-mother.

If one has a spiritual co-father, whose son he has received from the Sacred Font, but that one's wife is not his co-mother, then, when the co-father dies, he can lawfully take the widow as his wife if there is no close blood relationship. Why not? Cannot those be joined who are not prevented by any blood relationship or spiritual paternity?

Also, from Pope Pascal II's letter to Bishop Reginus:

C. 5.

The same.

There appears to be no reason or authority which prohibits a surviving husband from uniting in marriage, after his wife's death, with the wife's co-mother. Spiritual relationship is not like physical relationship, and one does not enter a spiritual relationship through a fleshly union.

Part 3.

Gratian: It is one thing to know someone's co-mother, and another thing for a woman abandoned by someone to become a co-mother. The authority of Pope Nicholas [C. 30 q. 4 c. 2] and Chalcedon [C. 30 q. 4 c. 2] prohibits a man who has rendered the debt to his wife, after she became a co-mother, to marry his wife's co-mother.

But the authority of the Council of Trebur [C. 30 q. 4 c. 4] permits one to join in matrimony with a wife who became his co-mother after she was abandoned by a husband, who then did not know her after the co-parentage. One asks, then, whether a wife and her husband may receive a child together at Baptism.

On this, Urban II wrote to Vitale, priest of Brescia:

C. 6.

A wife and husband together may not receive someone else's child at Baptism.

We find no authority who has prohibited a wife and husband from receiving a child at Baptism. But so that spiritual purity be kept free from all stain and infamy, we decree it fitting that the two together should not attempt this.

As one who has intercourse with two co-parents or two sisters commits a sinful crime, a heavy penance, in proportion to the fault, should be imposed on these.

Gratian: The text from the Council of Trebur [C. 30 q. 4 c. 4], ``If one has a spiritual co-father . . ,'' should to be understood as predating this prohibition, or the wife should be taken as a co-mother of a different son than the one to whom the man is co-father.



QUESTION V

Part 1.

Gratian: That clandestine marriages should not be made, Pope Evaristus testifies, writing to the bishops of Africa, [in Letter i]:

C. 1.

Clandestine marriages should not be made.

Only those who have authority over a woman, and from whose custody she is sought as wife, can make a lawful marriage. Her close kin betroth her and give her a dowry in accord with law. In her own time, as is customary, the priest blesses her with prayers and offerings; and the bridesmaids shield and accompany her, as custom teaches. Her next of kin comes and gets her at the proper time, and she solemnly receives her legal dowry. Then they give themselves to prayer for two or three days, keeping chastity.

§1. Also: Know that lawful marriages must be carried out this way. Otherwise it is not presumed to be marriage. Rather it is considered adultery, concubinage, debauchery, or fornication, not a lawful marriage, unless the couple gives consent to it and lawful vows lend support to it.



Also, from the Decree of Pope Hormisdas, c. 6:

C. 2.

Lawful marriages cannot be celebrated clandestinely.

Let no believer, of any condition, marry clandestinely. But let him marry publicly in the Lord, receiving a blessing from a priest.

Also, Nicholas, to the questions of the Bulgarians, [c. 3]:

C. 3.

Marriages should be celebrated publicly.

When our people contract marital bonds, neither men nor women bind anything of gold, silver, or metal on their heads. After the betrothal, which is a promise of future nuptials, they celebrate the bonds, which consist of the consent of both those contracting and that of those under whose control they are.

The bridegroom then espouses the bride with an ernest, by placing on her finger a ring of fidelity. And the bridegroom gives her a dowry pleasing to both, and a contract is drawn up in writing before those whom each party has invited. (He does this immediately, or at an opportune time, lest they do anything before the time defined by law.)

Both are then led to the nuptial bonds, being first brought into the church of the Lord with the offerings that they must offer to God through the hands of the priest. Then they receive his blessing and the heavenly veil.

§1. Also: These things, along with others that do not come to mind, constitute a solemn contract of marriage. We do not, however, declare it a sin if not all occur at the nuptial bonding.

Also, Pope Leo:

C. 4.

In contracting marriage, these things are to be observed.

A wife taken according to the law would be a chaste virgin, betrothed in her virginity, lawfully endowed, bestowed on the bridegroom by her parents, received by the bridesmaids, and taken openly into marriage with public nuptials, according to the Law and the Gospel. She should never separate from her husband all the days of her life (except with his consent to spend time with God).

If she commits fornication, she is to be sent away. But then he may not take another while she is alive, because adulterers will not possess the Kingdom of God [1 Cor. 6:9]. And she shall receive penance in accord with the Scriptures.

Also, from the Fourth Council of Carthage, [c. 13]:

C. 5.(15)

How the bridegroom and bride will approach for the blessing.

When the bridegroom and bride are to be blessed by the priest, their parents or the bridesmaids will offer them in church to the priest. Then, when they have received the blessing, let them spend the night in virginity, out of reverence for the blessing.

Also, from the Council of Arles, c. 6:

C. 6.

Let no one take a wife without public nuptials.

Let no marriage be made without a dowry. And let the dowry be whatever is possible. Let no one presume to marry, or to take a wife, without public nuptials.

Gratian: These authorities all prohibit clandestine nuptials. Thus nuptials contrary these authorities should be held as void.

Part 2.

§1. So, what do the solemnities of the ring and veil observed in marriage mean?

On these, Isidore writes in On the Offices, II, xvi:

C. 7.

Why women are veiled when they marry.

Women are veiled when they marry to show them that they are always to be humble and subject to their husbands.

§1. Also, after the blessings, those marrying are united by the single band of the fillet. This means that they may not break the link of conjugal unity.

§2. The fillet is woven of the colors white and purple. White is for cleanliness of life, purple for the blood of their posterity. This signifies both continence toward each other, which is counseled for a time, and the later rendering of the debt, which cannot be denied.

§3. Also, at the beginning, the bridegroom gives the bride a ring as a sign of their mutual love, that by this pledge their hearts may be joined together. The ring is placed on the fourth finger because it is said that this finger has a vein that carries blood to the heart.




Part 3.

Ambrose, in On the Patriarchs:

C. 8.

Nuptials are called from veiling (abnubendo), because it is customary to veil the head during them.

When Rebekah came and saw Isaac walking, she asked whether she would be given to him as wife [Gen. 24:64-66]. It was not without purpose then that she descended and put a veil on her head. She thereby taught the modesty that should precede nuptials. And thus they are called nuptials, because girls veil (obnuberent) themselves on account of modesty.

Part 4.

Gratian: Objections to the preceding: Many things are prohibited, which, if done, become retroactively valid. Those who make vows are forbidden to contact marriage [C. 27 q. 1 c. 20], yet if they have contracted it, the marriage must remain inviolate [C. 27 q. 1 c. 41].

Also, clandestine marriages, made contrary to law, once contracted cannot be dissolved if they are confirmed by a lawful subsequent vow. Hence Evaristus, when he said [C. 30 q. 5 c. 1 §1], ``Otherwise it is not presumed to be a marriage, but an adultery,'' added, ``unless the couple consents to it, and lawful vows lend support to it.''

Hence in the Novels [67:4]:






[C. 9.]

If someone, touching the divine Scriptures, has given a woman an oath that he will take her as his lawful wife, or, if he made such an oath in a chapel, she is his lawful wife, even though no dowry or documents were employed.

[Gratian:] Reply to these arguments: Clandestinely contracted marriages are not denied to be marriages, nor can they be dissolved if they can be demonstrated by the testimony of both. But they are prohibited because, if the will of one party changes, the judge cannot give credence to the other's testimony. Hence, when someone first makes vows to one party and then to another, the judge, who is left in doubt, can pass no public judgment on the first marriage.

As Pope Sixtus writes to the bishops in Spain, no pope can presume to pass judgment if something is in doubt. Even if something were true, he could not believe it, unless there were solid evidence, convincing in open court and publicly presented in a legal process, to prove it.

Hence Pope Victor also writes to bishop Theophilus, ``Most beloved, we do not pass judgment on doubtful matters, until the Lord comes, who will bring to light what is hidden, illuminate the obscure darkness, and make manifest the purposes of heart [cf. 1 Cor. 4:5]. Even if something is true, it cannot be believed, unless there is solid evidence, convincing in open court and publicly presented in a legal process, to prove it.''

Also, Pope Evaristus to all the bishops, [in Letter ii]:

C. 10.(16)

No one can be judged or condemned without a fair trial.

We ought not judge or condemn anyone without a true and fair trial, as the Apostle's testimony says [Rom. 14:4], ``Who are you to judge another's servant? He stands or falls before his own lord.'' Therefore no one should be influenced by evil rumors or believe something bandied about without convincing proof. Rather, first inquire diligently into what is reported, lest anyone act hastily.



Also, Pope Eleutherius, [in a letter to the provinces of Gaul]:

C. 11.

Judgment cannot be passed until a matter is proved by solid evidence.

The judge must scrutinize everything and determine the course of events by a full inquiry. He is also to exercise patience in hearing interrogations, answers, and objections, so that both parties' cases be fully illuminated. A judge should not give his opinion to the litigants before everything has been completed, they have nothing more to add on the question, and the entire case has been ventilated to bring out the truth of the matter. Interrogation is frequently needed, lest perchance something be omitted that should be included.

Gratian: The foregoing indicate very plainly that one should not pass over something certain in favor of something uncertain, and that a final opinion cannot be reached in doubtful matters. In doubtful matters, one must believe only what is proved by witnesses or lawful confession to the judge.

The authority of Pope Calixtus [cf. C. 3 q. 9 c. 15], shows that witnesses cannot give testimony about cases or matters unless the events occurred in their presence. Clandestine marriages are therefore obviously forbidden, because when one party denies conjugal affection towards the other, this cannot be disproved by lawful proofs. When these are lacking, the judge must thus give a sentence freeing him, and both parties will incur the guilt of adultery, because each will remarry while the other is alive.




CASE THIRTY-ONE

Uxorem cuiusdam alius constuprauit; eo mortuo adulter adulteram sibi in uxorem accepit; filiam ex ea susceptam cuidam in coniugem se daturum iurauit; illa assensum non prebuit; deinde pater alii eam tradidit; a primo reposcitur.  

Queritur: an possit duci in coniugium que prius est polluta per adulterium? Secundo, an filia sit tradenda inuita alicui?  Tertio, an post patris sponsionem illa possit nubere alii?
 

Gratian: A man violated and debauched the wife of another. When her husband died, the adulterer accepted the adulteress as his wife. He swore an oath that he would give the daughter that he had received from her to another in marriage. The daughter would not give her consent.  Finally her father gave her to another.  But the first man asked for her to be given to him again.

It is asked: whether one can conclude a marriage with one previously polluted by adultery?

Second, whether a daughter can be given unwillingly to a man?

Thirdly, whether after her father promises her to one man, can she marry another?

Sankt Gallen, Stiftsbiblothek 673, p. 176 (C.28):

Quidam alterius uxorem corrupit.  Quo mortuo alius adulteram uxorem sibi accepit.  Filiam ex ea susceptam cuidam se daturum in coniugem iuravit, que quidem noluit consentire.  Vnde pater eam alii tradidit.  Nunc a primo reposcitur.  Vnde modo queritur utrum  in coniugem duci possit per adulterium primitus copulata?  Secundo, an filia alicui invita tradi possit?  Tertio, an post patris sponsionem alii nubere possit?

 

 

QUESTION I

Part 1.

Gratian: The authority of Pope Leo prohibits one polluted by adultery from being taken in marriage:

C. 1.

A man may not marry a woman he has polluted by adultery.

No one may take in matrimony a woman whom he earlier polluted by adultery.

But Augustine testifies to the contrary, writing to Valerius, in On Marriage and Concupiscence, [I, x]:

C. 2.

One can lawfully take in matrimony a woman he has previously polluted by adultery.

When the man with whom there was a true marriage has died, one can marry the woman with whom he had committed adultery.

§1. Also, in the book On the Good of Marriage, [xiv]: Persons joined together unlawfully can have a lawful marriage, if they subsequently manifest respectable consent.

Gratian: This last authority [C. 31 q. 1 c. 2 § 1] deals with concubines and states that concubines later give respectable consent to marriage. The first authority from Augustine [C. 31 q. 1 c. 2 pr.] deals with a woman repudiated by one man and taken in marriage by another, while her husband was alive. It stated that she had committed adultery, but that her adultery was to some extent excusable because she thought her union was licit.

§1. Pope Leo [C. 31 q. 1 c. 1] should be understood as referring to a woman not repudiated by her husband, whose husband is alive and renders the conjugal debt to her.

Hence the council at Altheim, where King Conrad was present, established, c. 6:

C. 3.

One may not marry a woman whom he earlier

polluted by adultery.

Following the legislation of the canons, we define and determine as a general decree that, if one has fornicated with another's wife during the other's lifetime, and the husband then dies, the unlawful congress is closed to him by this synodal judgment. Nor may he later join in matrimony the woman whom he had previously polluted by adultery [cf. C. 31 q. 1 c. 1]. We forbid, as unbecoming to the Christian religion, that anyone take in marriage one whom he earlier polluted by adultery.

Gratian: Here it must be understood that he can take her in marriage after penance has been completed if he survives the husband, but only if he did nothing to bring about husband's death and gave no pledge to the adulteress while her husband was alive.

Hence, in the Council of Trebur, it reads:

C. 4.

One who has promised future nuptials to an adulteress while her husband is alive cannot have her in marriage after he dies.

It has come to the ears of holy priests that a certain man violated another's wife by seduction. Then, while her husband was alive, he swore an oath to the adulteress that, if he outlived her lawful husband, he would take her as wife after his death. This then happened. Therefore, we prohibit and anathematize such marriages.

Also, at the same council:

C. 5.

One who polluted a widow by adultery while her husband was alive may take her in marriage after doing penance.

If someone is accused of committing adultery with a wife while her husband was alive, the husband dies shortly after, and he then takes her, let him be subjected full public penance.

If it is expedient, the said rule should be observed after penance has been completed, unless the man or woman has killed the deceased husband, or blood relationship or other criminal action impedes it. If such is proved, let them remain in perpetual penance, without any hope of marriage.

[Also, from the Council of Verberie:

[PALEA. C. 6.

[If a woman plotted her husband's death with others, and her husband killed one of them defending himself, the husband may prove her complicity and, in our opinion, dismiss his wife and take another if he wishes. Let the conspirator herself be subject to penance, without hope of marriage.]

Also, from the Council of Elvira, [c. 72]:

C. 7.

A widow married to her adulterer may be readmitted to Communion after penance.

If a widow committed adultery and then took the man as husband, we decree that she may be readmitted to Communion, after she has completed five years legal penance.



Part 2.

Gratian: Objection: David both committed adultery with Bathsheba and plotted the death of Uriah, but afterwards he took Bathsheba as his wife [2 Sam. 11:2-26]. But many things permitted because of weakness in the Old Testament are forbidden by the perfection of the Gospel. Thus, once anyone could give a bill of repudiation, lest innocent blood be shed through hatred [Deut. 24:1]. Later the Lord prohibited this, saying in the Gospel [Mt. 19:8] that a wife cannot separate from her husband, except on account of fornication.

Some things were permitted on account of weakness and others as symbols of things to come. Thus the Lord permitted the People of Israel to offer him sacrifices of the animals that they were accustomed to sacrifice to demons in Egypt [Lev. 9:1-4]. He preferred that they offer these to him rather than to idols, so they be signs for them of what was to come. So he permitted Bathsheba to be taken as a wife, not so much on account of weakness, but more as a sign of things to come.

§1. There is another reason why the dead man's widow cannot marry him. In general, men and women are prohibited from contracting multiple marriages. Hence priests ought not be present at the celebration of second marriages, as read in the Council of Neo-Caesarea, [cc. 3 & 7]:



C. 8.(17)

Belief and way of life may shorten the penance of those who enter multiple marriages.

A certain time has been allotted to those who take multiple wives and those who marry several times, but the quality of their life and belief may shorten the time.

§1. A priest should not be present at the celebration of second marriages, especially because he must impose penance for a second marriages. What priest would consent to such marriages for the sake of dinner?



Also, John Chrysostom, [that is, the author of

the Incomplete Work on Matthew, Homily xxxii]:

C. 9.

In accord with the demands of truth, one who takes a second wife is convicted of fornication.

The Apostle thought that people might enter second nuptials on account of their incontinence [1 Cor. 7:8-9], and, indeed, in accord with the Apostle's command, taking a second spouse is lawful. But in accord with what truth demands, it is really fornication. But when it is done publicly, legally, and with God's permission, it becomes decorous fornication.

Therefore, he correctly said [Mt. 19:8] that Moses permitted it, but did not command it [cf. Deut. 24:1]. To command is one thing, to permit another. What we permit contrary to our will, we do not command, for we cannot prohibit every evil human desire.



Also, Jerome, in On Virgins:

C. 10.

Second marriages are conceded to eliminate

the danger of fornication.

As he concedes that virgins may marry because of the danger of fornication [1 Cor. 7:9], it is something not to be sought in itself but excusable. So, on account of the danger of fornication, he concedes second marriages to widows. For it is better to know one man, and then another, and then a third, than to know several at once. It is more tolerable to prostitute oneself to one man than to many.

Indeed, in the Gospel [John 4:17-19], when the Samaritan woman said that she had a sixth husband, the Lord asserted that he was not her husband. For where there are several husbands, a husband in the proper sense, ceases to exist. In the beginning one rib was made into a woman. ``And the two shall be,'' he said [Gen. 2:24], ``one flesh''not three, not four, or anything else that would be several rather than two.

The bloody and murderous Lamech was the first to divide his one flesh between two wives [Gen. 4:23]. The same cataclysmic penalty punished both fratricide and bigamy, but the one was punished seven times, the other seventy-seven times [Gen. 4:24]. The greater number indicates the greater crime.

§1. That a twice-married man cannot be selected for the clergy [cf. 1 Tim. 3:2; Titus 1:6] shows how holy bigamy is! Also, the Apostle says to Timothy [1 Tim. 5:9], ``Let a widow who is selected be not less than sixty years old, having been married but once.'' This is a general commandment concerning those widows who receive the Church's charity for food. The age was set so that only those no longer able to work would receive the food of the poor. But note, at the same time, that she who had two husbands, even if hard-pressed, decrepit, and needy, does not deserve the Church's offerings.

If she is deprived of the bread of charity, how much more guilty of violating the Lord's Body and Blood will he be who eats unworthily [cf. 1 Cor. 11:27] what has come down from Heaven? Yet in spite of the testimonies set out above, widows are permitted to marry again, if they wish [1 Tim. 5:14]. But this certainly refers only to widows who accepted the Christian Faith after losing their husbands.






Part 3.

Gratian: But he says this to exhort widows to continence, not to condemn second or subsequent marriages. Of many authorities, the following clearly show that they are lawful, as we see from Jerome's own words, when says to Pamachius, [in Against Jovinian]:

C. 11.

Second, third, and subsequent nuptials are not condemned.

Let my detractors open their ears, I say, and let them see that I have conceded second and third nuptials in the Lord. How could I condemn second and third nuptials without first condemning marriage itself?

§1. Also: I do not condemn the twice-married, the thrice-married or, I would even say, the eight-times-married.

§2. Also: I now proclaim with a free voice that two marriages are not condemned in the Church, nor are three marriages. It is as lawful to marry a fifth, a sixth, or even more, as it is to marry a second husband.

Also, Augustine, in Against the Adversary of the Law and the Prophets, [xi]:

C. 12.

Second marriages are proved to be as lawful

as first marriages.

For the sake of propagating the race, God joined man and woman in nuptial chastity, and he showed that second nuptials, which are also permitted in the New Testament, were lawful.

The same, on the First Letter to the Corinthians [7:39]:

[C. 13.]

``If her husband dies''he does not specify her first, second, or fourth. We should not define what the Apostle did not define. Hence I ought not condemn any nuptials, nor attribute any shame to their number. The Lord did not condemn the one married seven times [Mt. 22:28], nor did he say she would not be present at the Resurrection. He said only [Mt. 22:30], ``They will neither marry nor be given in marriage.''

Hence I dare not speak against anyone's sense of human modesty, no matter how often they want to marry. Nor do I condemn in my heart any number of marriages. But what he said of every widow [cf. 1 Cor. 7:40], applies also to once-married people, ``She will be more blessed, if she remains as she is.''




QUESTION II

Gratian: That a woman should not be forced to marry anyone, Ambrose testifies, writing on First Corinthians [cf. 7:39]: `` `Let a widow marry whom she pleases, but only in the Lord.' That is, let her marry the man she thinks fit for her, because forced nuptials usually turn out badly. `But only in the Lord.' That is, let her marry without suspicion of impropriety, and let her marry a man of her own religion.''

Also, the judgment of Pope Urban:

C. 1.

A girl is not to be compelled to marry because of an oath of her father to which she never gave assent.

Our legates have reported to us that the distressed Prince Jourdain was forced to betroth his infant daughter, unwilling, weeping, and resisting as far as her strength permitted, to Renaud, the son of Ridel, and that her mother and relatives did not assent either but were very grieved. If this proves true, such a betrothal cannot be approved by the authority of the laws and canons, as will be shown below.

But, if what we have said seems too hard to those learned in the laws and canons, we modify the sentence. If the prince, having the daughter's, mother's, and relatives' consent, decides to go forward with what has been begun, we allow it. But if he refuses, our legate will hear both parties. If nothing prevents it on the part of the said Renaud, let Jourdain take an oath to him that this is the case.

Following the decrees of canons and laws, we do not prohibit his daughter to marry any another man she wishes, but only in the Lord.

[On the contrary, Pope Hormisdas writes to Bishop Eusebius:

[PALEA. C. 2.(18)

[Venerable brother, Your Holiness asked us about an adult son whose father wished to contract a marriage for him. Could this be done contrary to the adult son's will? We say that, if the son refuses, it cannot be done.

[But as to a son who is not yet an adult, and whose will cannot yet be discerned, his father can give him in marriage to whomever he wishes. Then later, when the son has reached a mature age, this must be completely obeyed and executed. We command that all worshippers of the Orthodox Faith keep this decree of ours.]

The same, to Sancho, king of Aragon:

C. 3.

Those who will be of one body should be of one mind;

thus, none should be joined to another against her will.

You have sworn that, forced by necessity, you plighted your faith to give your niece in marriage to a certain soldier. If, as is said, she rejects this man entirely, and maintains the same determination of will, refusing to marry that man, we, at the dictate of equity, decree: You can not force her, unwilling and resisting, to be associated with this man in marriage.

Those who will be of one body should be of one mind. Otherwise, if a virgin is joined to a man against her will, she may decide to separate, contrary to the Lord's [Mt. 19:9] and the Apostle's [1 Cor. 7:10] commandment, or she may fall into the crime of fornication. The responsibility for this sin will clearly redound against him who joined her against her will. The same applies equally to a man.





Also, Nicholas to Bishops Raduld of Porto and John of Cerira:

C. 4.

A husband may not lawfully desert the woman he has taken as wife, after giving a dowry, and before public witnesses.

Your memorandum declares that King Lothar received Gualdrada from her father, and then later received Hubert's sister. Inquire, first, by diligent investigation, how the same glorious king received the said Gualdrada: did he receive her in matrimony with public ceremony, after giving a dowry, before witnesses, according to law, and by celebrating the customary nuptial rite? We ourselves will investigate why he repudiated her and received Boso's daughter.

The same glorious king says that fear compelled him to receive Theberga. But a great king should not plunge over an immense precipice, contrary to the divine commandments, out of fear of one man. In this case, he certainly appears reprehensible, since he has put the love of God second to the love of the world. For one should not fear those who can kill the body when they compel him contrary to justice.

If the king did have a public ceremony, we then merely command you to decide this case on our behalf, without fear and according to the authority of the canons. If it is proved instead that Gualdrada was not his lawful wife, and that she was not joined to our son Lothar through celebration of the customary nuptials with the blessing of the priest, inform our son Lothar that there is no wrong in reconciling himself to his lawful wife, if she is innocent.

§1. Furthermore you should know that the said Theberga appealed twice, and then a third time, to the Apostolic See. Then the said glorious king unjustly rejected her when she entreated him and compelled her by force to draw up a false incrimination of herself. When she appealed before this confession, she sent to the Apostolic See a brief in which she explained that she had been compelled to accuse herself falsely of crime. She added, ``If I am forced further, known that I will say whatever they want, not for the truth, but for fear of death and out of the desire to escape, which I cannot otherwise do.''

Hence, we command you to give her case scrupulous examination, when the same Theberga comes, as we have ordered, to the said synod. If the objection is raised against her that she has confessed to committing some crime, and she proclaims in response that she suffered violence, or testifies that the judges were her enemies, then you will pass a new sentence in accord with the norms of equity, so that she will not be oppressed by such a heap of injustices.

Gratian: These authorities plainly shown that no woman should be joined with another, except by her own free will.



QUESTION III

Gratian: The Council of Elvira, [c. 54], shows that children cannot be made to marry others after their parents have betrothed them, where it says:

C. 1.

On parents who break the promise of betrothal.

If parents break the promise of betrothal, let them abstain from Communion for three years.

If the betrothed man or woman was not caught in this serious crime, the parents may be excused. But if they were involved in same sin, and polluted themselves by consenting, let above judgment stand.

Gratian: So it is unlawful for parents to break their children's betrothals. But this applies only to those betrothals contracted with the parents' consent.




CASE THIRTY-TWO



Gratian: An unmarried man married a prostitute, but she was sterile. She was the daughter of a slave and the niece of a free man. Although her father had wanted to give her to another man, her uncle gave her to yet a third, who married her merely because he wanted to have sex.

This man, repenting of that, began to seek children from his own slave girl. Then, after he was convicted of adultery and punished, he had someone violate his wife by force so that he could dismiss her. After that, he married a certain unbeliever, on the condition that she convert to the Christian Religion. It is asked:

First, may one lawfully take a prostitute as wife?

Second, is a woman married only for sex a true wife?

Third, should the woman obey her free uncle's decision or her slave father's?

Fourth, can one lawfully seek children from a slave girl while one's wife is alive?

Fifth, has one who has suffered violence lost her innocence?

Sixth, can an adulterer dismiss an adulteress?

Seventh, can a believer lawfully marry an unbeliever, subject to the given condition?



QUESTION I

Part 1.

Many authorities and reasons prove that one cannot take a prostitute as wife. For one guilty of adultery may not be taken in marriage, except after a long penance.

Hence John Chrysostom, [that is, the author of the Incomplete Work, Homily xxxii], says on Matthew 9:

C. 1.

One who refuses to dismiss an adulterous wife promotes vice.

Just as one who dismisses a chaste woman is cruel and wicked, so one who keeps a prostitute is foolish and unjust. Indeed, one who conceals his wife's crime is himself a promotor of vice.

Also, Jerome, [in the Commentary on Matthew 19]:

C. 2.

A man should dismiss his wife on account of fornication, but he cannot take another.

The Lord says in the Gospel [Mt. 19:9], ``Whoever puts away his wife, except for fornication, and marries another, commits adultery; and he who marries a woman who has been put away commits adultery.'' Adultery alone destroys affection for a wife. Nevertheless, since one person cannot become one flesh with two people, the woman separated from her husband cannot marry another, lest the passage in Scripture [Prov. 18:22], ``He that kepts an adulteress is foolish and wicked,'' condemn them.

So, if fornication or suspicion of fornication arises, one is freely allowed to dismiss one's wife. But, because someone might slander an innocent person, and to protect the first couple's nuptial bond from crime, Christ orders one to dismiss the first wife but not to take another while she is alive [Mk. 10:10-11].

The same, on Paul's [First] Letter to the Corinthians [6, in the Ordinary Gloss]:

C. 3.

Only a husband's fornication can mark his wife.

No sin that a married man can commit will sully his wife. But fornication marks his wife as well, because she will no longer be lawful for her husband, but like an adulteress.

Also, John Chrysostom:

C. 4.

Let one who refuses to dismiss an adulterous wife do penance for two years if he renders the debt to her.

If a man discovers that his wife is an adulteress, and then insists on keeping her in marriage, let him do penance for two years, because he is having intercourse with an adulteress whose crime has not been expiated. He should instead abstain from matrimonial union until she makes satisfaction for her crime by penance. Then, after completing her penance, she will no longer deserve to be called an adulteress. Likewise, if a wife discovers that her husband is an adulterer, she should act no differently.




Part 2.

Gratian: This means that a husband can take back a wife who has agreed to break off her adultery, without risk to himself.

Hence Pope Pelagius to the Subdeacon Melleus:

C. 5.

A man may take his wife back after her penance for adultery.

You have explained the situation of Benedict, who with a wicked spirit has been associating with his estranged wife in his own house. If this is correct, we command Your Prudence to warn him severely not to stain himself with that adulteress. These erring persons must separate from one another. Let him without delay transfer his household to Lucius, the guardian of the province of Apulia.

Should he truly desire to take her back, he may cautiously do so under your direction, so long as he allows her no opportunity to commit another similar crime. But, if he absolutely refuses to take her back, you shall, after providing for her, move him to another place where he can live blamelessly.

Also, from the Penitential of Theodore:

C. 6.

He who renders the debt to an adulteress shall do penance

for three years.

If anyone knowing his wife is an adulteress refuses to dismiss her, and instead continues in matrimony with her, let him do penance for three years. And let him abstain from her as long as she is doing penance.




Also, Augustine to Pollentius, [in On Adulterous Marriages,] II, [vi]:

C. 7.

Spouses may be reconciled after adultery has been

expiated by penance.

You may think it impossible for spouses to be reconciled after adultery, but it is not impossible with Faith. For how can we consider them adulterers after the sin has been removed by Baptism or purged by penance? The Old Law had no sacrifices to remove these crimes, but under the law of the New Testament they are removed without purgation. Then it was absolutely forbidden to take a wife who had been contaminated by another.

Nevertheless David married Saul's daughter [1 Sam. 18:21-27], whom Saul had given to him after separating her from another. So, she undoubtedly prefigures the New Testament. For Christ later said to the adulteress [Jn. 8:11], ``Neither will I condemn thee. Go your way, and from now on sin no more.'' Who would not agree that a husband should also overlook what the Lord of both spouses has himself overlooked? Or shall a penitent still call herself an adulteress after God has wiped away her crime?



The same, in On Adulterous Marriages:

C. 8.

The same.

It is neither vile nor impossible to reconcile a marriage after the adultery committed has been expiated. Where the Keys of the Kingdom of Heaven are found, there is, without a doubt, also the remission of sins [cf. Mt. 16:19]. Thus a husband does not take back the adulteress who was separated from him, because she is no longer to be called an adulteress after her reunion to Christ.

Also, Ambrose, [in On Cain and Abel, II, iv]:

C. 9.

The virtue of chastity is affirmed when the vice of fornication is rejected.

When one rejects an evil, one, by that act, affirms a virtue. Abandoning vice brings entry into virtue. By the same act through which crime is rejected, innocence is achieved.

Also, Gregory, [in Homily xxix on the Gospels]:

C. 10.(19)

Before God, one is no longer a liar after returning to the truth through penance.

One who returns to the truth is not considered a liar before the merciful judge, even after lying. Almighty God simultaneous condemns us of error and hides the error, when he freely accepts our penance.



Gratian: If a woman continues in adultery, her husband is a promotor of vice and guilty of pandering, unless he charges her with being guilty of adultery. So, in Cod. 9.9.2 [8.9.2], the Emperors Severus and Antoninus say: ``The crime of pandering is contracted by the man who maintains this marriage with a wife caught in adultery, but not by the one who merely suspects her of adultery.''

§1. This is not the case for wives. They cannot charge their husbands with being guilty of adultery. For in the same section [Cod. 9.9.1], the same emperors say: ``Wives may not bring an accusation of adultery in a public court. Nevertheless, they can charge violation of marriage. The Julian Act states that, although males have lost the standing in law to accuse a husband, the same privilege has not been lost by females.''

§2. As one can deduce from these authorities that no one may keep an adulteress, so is it even less permitted to marry a woman fallen from innocence. For spouses should mutually preserve fidelity and the Sacrament, because, when these are lacking, the two become adulterers rather than spouses.

Hence Augustine writes, in Against Julian, I:

C. 11.

True marriage does not consist in mere intercourse between a male and a female.

Contrary to your raving, true marriage does not consist merely of intercourse between a male and a female, although, without that, marriages could not procreate children. Other elements are essential to marriage, and these distinguish marriage from adultery. For example, fidelity to the conjugal yoke, actions directed to the procreation of children, and (here is the greatest difference) the good use of something evil, that is, the good use of carnal desire, something which the adulterer misuses.

Gratian: The goods he commends here must be distinguished from their misuse.



Part 3.

On the contrary, Ambrose seems to condemn marriage when he says:

C. 12.

This authority seems to condemn both first and

subsequent marriages.

Marriage populates the world, virginity populates heaven. This is because, in the true Hebrew version, Scripture says [Gen. 1:10, 12, 18, 21, 25, 31], ``And God saw that it was good,'' on the first, third, fourth, fifth, and sixth days, and again after the works of all the days were complete. But on the second day he did not say this, leaving us to understand that the duality in number was not good, for it both divided unity and prefigured the covenant of marriage.

So, all the animals that entered Noe's ark by twos were unclean [Gen. 7:2]. The clean were of an odd number, inasmuch as duality recalls both that Sacrament that the beasts do not possess, and the union of the unclean birds. The unclean entered two by two, and the clean by sevens [cf. Gen. 7:2-3], so that after the flood Noe could offer to God from the oddly numbered [Gen. 8:20].



Gratian: But he says this in exhortation, not to make virginity obligatory.

Hence the same Ambrose says, [in The Exhortation to Virgins]:

C. 13.

Virginity is urged as a counsel, not imposed as a precept.

We should seek bodily integrity, and I urge it as a counsel, but I do not impose it as a precept. For virginity should only be urged, not commanded, for fulfillment of a vow is greater than fulfillment of a precept.



Part 4.

Gratian: Since, as we said, no fidelity can be expected from a prostitute, and her innocence is dubious, she plainly cannot be taken in marriage.

§1. Objection: Rahab of Jericho, although she was a prostitute, married a leading prince of the tribe of Judah [Mt. 1:5], the tribe from which Christ was later born [Mt. 1:2]. And Hosea, the first of the Twelve Prophets, at the Lord's command, bought a prostitute with a measure of barley and took her in marriage [Hos. 3:2].

But it is one thing to take a prostitute or keep an adulteress, whom you plan to instruct in your habits, chastity, and modesty, and another thing to take one whom you cannot, by any argument, recall from her indulgence of the flesh. The later course is strictly prohibited, but one reads that doing the former is laudable.

Hence Jerome, in On Hosea, I, [at chapter 1]:

C. 14.

It is not a sin to take a prostitute as wife.

The Prophet Hosea should not be blamed for marrying the prostitute whom he converted to chastity, rather he should be praised for making an evil woman good [cf. Hos. 3:3]. One who stays good is not polluted by joining someone evil, rather an evil person becomes good if guided by a good person's example. This shows us that the prophet did not loose his innocence by marrying a fornicator, rather the fornicator learned an innocence she had hitherto lacked.





QUESTION II

Part 1.

Gratian: It seems evident that a woman taken merely to have sex is not a wife, because God instituted marriage for propagation, not merely for satisfying lust. For the nuptial blessing is [Gen. 1:28], ``Increase and multiply.''

Thus Ambrose in On Luke, [I, at chapter 1]:

C. 1.

Bearing children is the sole reason for marriage.

It is shameful for a woman when her marriage bears no fruit, for this alone is the reason for marrying.

§1. Also, [the same, in Book II at the beginning]: That bearing children is the fruit of marriage and the blessing of matrimony is without doubt the reason that Mary's virginity defeated the Prince of this World.

Gratian: Thus anyone who joins himself to another, not for the sake of procreating offspring, but rather to satisfy lust is less a spouse than a fornicator.

On this, Jerome, [on Ephesians 5]:

C. 2.

Those not joined according to Christ's precept are called not spouses but fornicators.

As no congregation of heretics can be called a Church of Christ because they do not have Christ as their head, so no matrimony, where one has not joined her husband according to Christ's precept, can properly be called marriage, but is better called adultery.






Part 2.

Gratian: Reply to this: Matrimony was first instituted in Paradise so that the bridal chamber might be unblemished and marriage honorable, and so that conception be without lust and childbirth without pain [cf. Gen. 3:16].

Later [cf. Gen. 2], outside of paradise, it existed for the sake of preventing illicit liaisons, so that human weakness, which is prone to immoral ruin, might be remedied by honest marriage. So the Apostle, writing in [1] Corinthians [7:2], says, ``For fear of fornication, let man each have his own wife, and let each woman have her own husband.''

This is why spouses owe the marriage debt to each other, and cannot refuse it. The Apostle says [1 Cor. 7:5], ``Do not deprive each other, except perhaps by consent, for a time, that you may give yourselves to prayer; and return together again lest Satan tempt you because you lack self-control.'' Since he warns them to take up their normal relations again for fear of incontinence, it is clear that intercourse has not been ordered merely for the procreation of children.

§1. So, intercourse in marriage should not be considered evil. For even if it occurs in marriage without intention of generation, that is not evil, but merely a venial sin, on account of the three goods of marriage: fidelity, offspring, and the sacrament [cf. C. 32 q. 2 c. 5].

Thus Augustine, in On the Good of Marriage, [vi]:

C. 3.

Immoderate use of one's spouse in marriage is not evil but, because of the goods of marriage, only a venial sin.

Whenever married people treat each other in immodest, shameless, or obscene ways, this is a human vice, but it is not a offense against marriage. When one immoderately demands the conjugal debt, something the Apostle [cf. 1 Cor. 7] did not order but only permitted as a concession, even if it is not for procreation, this does keep one's dirty habits in the bedroom, and so protects the marriage from adultery and fornication. This is not permitted because of marriage, but overlooked on account of marriage.

So, spouses owe each other sexual fidelity and a certain sort of mutual obedience, not only for the purpose of producing children (which is the primary end of marriage in this passing world), but also to control their weaknesses and avoid illicit unions. So, even if one wanted to practice perpetual chastity, this could not be done without mutual consent.




Part 3.

Gratian: Nevertheless, the Holy Spirit does not assist when the conjugal act occurs.

Hence Jerome, on Matthew:

C. 4.

The Holy Spirit does not assist when the conjugal act occurs.

There is no sin in lawful sexual intercourse; nevertheless, when the conjugal act occurs, the Holy Spirit does not assist, except perhaps in a prophetess who has been ordered to bear children. But then there are many other activities for which human ability alone suffices, and in which nothing is lacking, but where it is unseemly that the Holy Spirit be present.

Gratian: Therefore, since such intercourse is not fornication, and is licit on account of the goods of marriage, the union of which we were speaking is not fornication, but licit, on account of the goods of marriage.

Also, as Augustine says, in his book on marriage, [xiv]:

[C. 5.]

``When concubinage was permitted, although concubines were not taken for the sake of children, the concubinage was still just.''

Part 4.

[Gratian:] Conversely, this should be understood of those who have united with matrimonial affection, although they did this, not for the sake of procreating children, but merely for extinguishing lust. So these are married, not fornicators.

The authority of Augustine proves this, in On the Good of Marriage, [v]:

C. 6.

Those who join each other for the sake of sex

alone are married.

One may ask whether it is a marriage, when a man and woman, who are not the husband or wife of another, join in order to have sexual intercourse, not to have children, but only because of incontinence, and are yet so faithful that neither would have sex with another woman or man. It would be absurd not to call this marriage if they persevered this way till death and if, although they did not marry for the sake of children, they did not avoid them, either by preventing their conception or by committing any wicked act to avert their birth.

But I do not see now we could call it a marriage if either or both of these conditions were lacking. For, if anyone takes one woman only until he can marry another more worthy of his honors and abilities, he is, by his own intention, an adulterer. And the adultery is not with the one he seeks, but with the one he now has without the marital bond.

Also, in On Marriage and Concupiscence, [I, xv]:

C. 7.

Those who use contraceptives are not spouses but fornicators.

Sometimes lustful cruelty, or better cruel lust, leads one to take contraceptive drugs, and, if they do not work, kill the living infant in the womb. Or they abort it before it is born, because they would rather have the child die in the uterus than live. If both spouses subsequently agreed to this they are not really husband and wife.

If they intended this from the start, their union was not marriage but debauchery. If only one intended this, I dare say that she or he was merely her husband's whore or his wife's paramour.

Part 5.

Gratian: Are those procuring abortion guilty of murder or not?

Augustine, in Questions on Exodus, [Question lxxx], says:

C. 8.

One who procures abortion before the soul is infused into the body is not a murderer.

An embryo which is not yet formed cannot be murdered, nor can it properly be considered a human being in the womb. This depends on the soul, for when something is unformed and has no soul, it cannot be murdered. Something cannot be deprived of a soul if it does not have one.

§1. Also: For even if an unformed embryo had, in some as yet unformed way, a soul (and one should not plunge into this great question and give a rash unreflective opinion), the law would not call it murder, because one cannot tell when a body that lacks sensation has a living soul.

The same, in Questions on the Old and New Testaments, [xxiii]:

[C. 9.]

Moses related that [cf. Ex. 21:22], ``If one strike a woman with child, and she miscarry, indeed, if it is formed, he shall render life for life, if it is unformed, he shall be answerable for a monetary fine.'' This proves that soul does not exist before there is a form. Thus, as it must be infused in an already formed body, this cannot occur at the conception of the body with the introduction of the seed. For if the soul existed as both seed and soul together, many souls would perish daily, whenever seed was emitted that did not result in a birth.

Let us examine what it would mean for it to exist before there was breath. Consider the creation of Adam [Gen. 2:7]. The example of Adam shows us the soul enters a formed body. If the soul could unite with the mud of the earth, this would form a body. But this is untenable because a house must be constructed before its occupant is introduced. The soul cannot dwell in the earth because it is a spirit, therefore it must dwell in the blood. So then, before the human frame has been assembled, where is the soul?




Also, Jerome, to Algasia, [Question iv]:

[C. 10.]

As the seed forms little by little in the womb, one cannot consider there to be murder until the parts and members come together and have received their shape. Like an idea conceived by reason, before it gives birth to action, it is held in the womb, or suddenly parishes because of an invader.

Part 6.

Gratian: When a man lives with a woman for a time, although he has committed adultery with her, it is not a sin for him to leave her, or for another to give his daughter to him.

Hence [Pope] Leo, [in Letter xc or xcii, 5-6, to Rusticus, bishop of Narbonne]:

C. 11.

It advances decency to eject a fornicator and take

a lawful wife.

To eject a slave girl from one's bed and take one free to become a wife does not produce a second marriage but advances decency.

§1. Those who fail to do this are blameworthy, but not to be despaired of. For, if aroused by frequent exhortation, they may faithfully perform what necessity requires. One should despair of no one while he is still in the body, for sometimes mature consideration accepts what youthful resistance rejected.

The same, [to the same, 4]:

C. 12.

It is lawful matrimony when a woman is given to a man

with a concubine.

Not every woman joined to a man is his wife, just as not every son is his father's heir. The bonds of marriage between free persons and between co-equals are lawful, and the Lord established them long before the beginnings of the Roman law. Thus, a wife is different from a concubine, just as the slave girl was different from the free woman [cf. Gal. 4:30].

§1. To show this distinction of persons, the Apostle [Gal. 4:22-26] gave the testimony from Genesis [cf. 21:10], where it was said to Abraham, ``Cast out this bondwoman and her son, for the son of the bondwoman shall not be heir with the son of the free woman.''

§2. So, if a any cleric gives his daughter in marriage to a man with a concubine, this is not the same as if he had given her to a married man, unless the concubine had been freed, lawfully endowed, and made an honest woman by public nuptials.

§4.(20) Women married at their fathers' command to husbands who had other women without matrimony are not culpable, because wives are different from concubines.

Part 7.

Gratian: When it says, ``Women married at their fathers' command to husbands,'' it is understood that a father's consent is desired in nuptials. Nuptials had without it are unlawful, as Pope Evaristus says [cf. C. 3 q. 5 c. 1], ``A marriage is unlawful, unless she is given by her parents.''

Also, Ambrose, in a book on the patriarchs, [that is, On Abraham, I, xi]:

[C. 13.]

``Rebekah's parents are honored with gifts. She herself is not consulted about the betrothal (she awaits her parents' decision, because it does not belong to virginal modesty to choose a husband). Once betrothed, she is consulted about setting the day, and she correctly does not suffer delay. Indeed, by right, she should hasten to her husband. [Cf. Gen. 24:53-61.]

``So Euripides [Andromache, 987] says that women generally wonder about how their transfer will be made manifest. He says in the person of a woman who wants to leave her husband and is sought by another in marriage, `My father had care of my betrothal, for that was not mine.' Thus, as the philosophers themselves admire, take care of virgins.

``But if a woman loses her husband in adolescence and, fearing that she will be snared by her own weakness, wishes to marry, let her marry, but only in the Lord [1 Cor. 7:39]. But let her defer to her parents in the choice of a husband, lest she be thought to be ruled by her passions if she insists on deciding on her own marriage. It is more fitting that the man seek her, than that she seek him. Let her prize her modesty over marrying, as it is modesty that commends her in marriage.''

The same, on the book of Numbers [30:4-6]:

[C. 14.]

`` `If a woman vow anything, and bind herself by an oath, being in her father's house, and but yet a girl in age: if her father knew of the vow that she had promised, and the oath that she had bound her soul with, and held his peace, she shall be bound by the vow. Whatever she promised and swore, she shall fulfil by deed. But if her father, immediately when he heard of it, objected to it, both her vows and her oaths shall be void; neither shall she be bound to what she promised, because her father has objected to it.' ''

Also, Augustine, [in Question lvii on Numbers]:

[C. 15.]

``Now it is proper to ask about the vow of virginity. In Scripture, women are customarily referred to as virgins, and it seems that the Apostle is speaking about a father when he says [1 Cor. 7:37], `Let him keep his virgin,' and [1 Cor. 7:38], `Let him give his virgin to be married.' ''

On the contrary, in the Third Council of Toledo, [c. 10]:

C. 16.

Widows and virgins choose their husbands by their own will.

This holy council affirms that widows, if they please, may keep chastity. If before they profess continence, however, they decide to marry, they may marry whomever they wish as husbands.

The case is the same for virgins. They may not be compelled to take husbands against their parents' will or their own. If someone impedes a widow's or virgin's vow of chastity, let him be barred from Holy Communion and the threshold of the church.

Gratian: The foregoing authorities clearly assert that, although some join not to procreate children, but merely to have sex, they are nonetheless married.



QUESTION III

Gratian: Pelagius decides the third question, when he writes to the Guardian Potentius:

C. 1.

A girl should obey the decision of her free uncle concerning her marriage, not that of her slave father.

The girl's father was clearly your church's slave, and her uncle was of free stock. We therefore decree that the choice of the niece's husband belongs to her uncle, rather than to her father, because his will is not free.

Gratian: So this approves her marring her uncle's choice, and clearly shows that she is lawfully joined.



QUESTION IV

Part 1.

Gratian: That one may seek children from a slave girl if one's wife is sterile, is shown by the example of Abraham [Gen. 16:2-3], who, because of his wife Sarai's sterility, went in to Hagar the Egyptian to have children from her. Also, Jacob [Gen. 30:1-5], when he could not have children from Rachel, raised them up from his slave girl. This was not merely because of her sterility, for one reads that he also went in to Leah's slave girl and sired children from her because of Leah's declining fertility. This indicates that, on account of a wife's sterility, one can lawfully seek children from a slave girl or some other woman. Otherwise, Abraham and Jacob would be guilty of adultery.

After Sarah's death, Abraham took Keturah as wife [Gen. 25:1]. Augustine [C. 32 q. 4 c. 1] says that this happened so that Christians not believe it a sin to marry another after the death of one's wife. So likewise, that he had children by the slave girl while his wife was alive, shows that this should not be considered a crime for anyone else.

Augustine said this in Against the Adversary of the Law and the Prophets, II, [ix]:

C. 1.

How Abraham is excused of the sin of fornication.

This man charges Abraham with the crime of fornication, even in decrepit old age, because he took another after Sarah's death. This shows no understanding of the symbolism of hidden realities. Abraham only did this lest, contrary to the People of God, the heretics (and Tertullian along with them) think it a crime to take a another after the death of one's wife. [Cf. 1 Cor. 7:39.]

Gratian: The symbolic reality here is that, through good people, both evil and good will be born into the Faith, and that, through evil people, both good and evil will be drawn to Faith.

Hence Augustine on John, [in Tract xi]:

C. 2.

As bad and good are born into Faith from good people, so good and bad are reborn through bad people's ministry.

Let your mind return to Abraham, Isaac, and Jacob. We find that all three took both free women and slave girls. A slave girl signifies nothing good. He says [Gen. 21:10], ``Cast out the bondwoman and her son.''

§1. We find something remarkable in the descendants of these free woman and slave girls. These include four types of people. Since these four types are a figure of the whole Christian people, it is not surprising that he said to the three men [cf. Ex. 3:6], ``I am the God of Abraham, the God of Isaac, and the God of Jacob.'' For among Christians (notice this, brethren) good people can have bad children, while bad people can have good children. Nor can you find any other types of people than these four.

§2. You find that Jacob had good sons born of slave girls, and good sons born of free women [Gen. 49-50]. Birth from the womb of a slave girl did not stand against them, when their father recognized his seed in them, and they consequently inherited the realm with their brothers. Among Jacob's sons, those born of slave girls did not inherit less of the realm or of the Land of the Promise, when they received it along with their brothers.

Birth from a slave girl did not stand against them because their paternal descent was more important. So, whoever is baptized by an evil minister is like one born of a slave girl because through the seed of the Word of God, which is prefigured in Jacob, they possess the same inheritance as their brothers. One born from good seed is safe, so long as he does not imitate the slave girl.

If you are born of a slave girl, do not imitate the evil slave girl's pride [cf. Gen. 16:4]. Why was Ishmael, born of a slave girl, expelled from the inheritance [Gen. 21:8-11], while Jacob's other sons, also born of slave girls, possessed the Land of the Promise with their brothers? Is it not because he was proud, while they were humble? He lifted up his neck, and wanted to lead his brother astray, playing with him. This is very symbolic. Ishmael was playing with Isaac, and Sarah saw him playing [cf. Gen. 21:9].

§3. She who bore Abel, Enoch, Noe, and Abraham, also same bore Moses and the later prophets, before the coming of the Lord. She who bore these, bore our apostles and martyrs, and all good Christians. She bore all those born throughout the ages. The society of a single people embraced them, they were the citizens of one commonwealth, and underwent the labors of this pilgrimage. Some are now undergoing them, and others will continue to do so until the end of time.

She who bore Cain, Ham, Ishmael, and Esau, also bore Dathan and those like him among the same people. Indeed, she also bore Judas, the false apostles, Simon Magus, and all other false Christians to this day. These were fixed and stubborn in their beastly desires, whether they stayed in unity or separated through open schism.

§4. They also received the Gospel from spiritual people, they drank from the same sacraments. It is as if, like Esau, they were born through Rebekah herself [cf. Gen. 25:22-23]. When such are born into the one people through those who do not announce the Gospel chastely, Sarah does not bear them but Hagar [cf. Gen. 16:3-4]. When good spiritual people give birth by evangelizing and baptizing the carnal, these become Leah's and Rachel's by conjugal right, although they were born of a slave girl.

§5. When spiritual people bear in the Gospel the good faithful, who journey in spiritual and pious desires, clinging to them without hesitation, and doing nothing because they cannot, they are like Isaac, born from Sarah's womb, or Jacob, born from Rebekah's, into new life and the New Testament.

And so whether they enter within, or they remain openly without, what is flesh is flesh. If they persist in the desert of their sterility, or are destroyed through temptation as by the wind, what is straw is straw. But they are apart from the unity of the Church, which is always without blemish or winkle [Eph. 5:27], although within it the Communion of Saints appears mixed with those of carnal pride. One should not despair then, when such are found within, or when they openly attack from without.





Part 2.

Gratian: Reply: For different times the Creator has different dispensations. The promise to Abraham was that in his seed all nations would be blessed [Gen. 12:3], and that his seed would possess the land of his sojourning [Gen. 12:7]. So, leaving others in idolatry, the Lord chose Abraham and his sons for himself as a people peculiarly his own.

Abraham rightly sought the multiplication of the people of God from the fecundity of many women, because the succession of the flesh was also the succession of the Faith. Hence it said in the Law [cf. Deut. 7:14], ``Cursed be the barren woman who does not leave offspring on the earth.'' For this reason the marriage of priests was ordered, so that through family succession would come succession to office.

But, as the grace of Faith was spread to all through the Incarnation of Christ, it did not say, ``Say to the house of Judah and the house of Israel,'' but rather [Mt. 28:19], ``Go, therefore, make disciples of all nations,'' and [Acts 10:35], ``In every nation, he who fears God and does what is right is acceptable to him.'' Nor is election to the promise found in succession of race, but in perfect life and sincere knowledge [cf. Acts 10:35], and as virginity is preferred to fecundity [1 Cor. 7:8], caste continence is ordered for priests.

So Abraham and Jacob did no wrong in seeking children from slave women other than their wives. But now, no one may, after their example, seek fecundity in another woman, outside the conjugal debt. Their marriages are not to be equated with ours, or to be preferred to virginity. Nor should immoderate use of marriage in our time imitate the disgraceful fornication of those times.

Hence Ambrose writes, in a book on the patriarchs, [On Abraham, I, iv]:

C. 3.

Abraham, who had sons by a slave girl while his wife was alive, was not guilty of adultery.

Sarah said to Abraham [Gen. 16:2], ``Behold the Lord has restrained me from bearing. Go into my handmaid, it may be I can have children of her at least.'' And so it happened. But consider first that Abraham lived before the Law of Moses, and before the Gospel. And it appears that adultery was not forbidden then.

A penalty for a crime takes effect when a law is enacted to prohibit the crime. Before the law, the guilty are not punished, but only after the law. Abraham did not violate the law since he lived before it. God praised marriage in Paradise but he did not condemn adultery.

§1. There you have the first defense of Abraham. The second is that he was not burning with some vain lust, nor captivated by her beautiful appearance, nor did he reject the marriage chamber for the slave girl's bed. Rather he was concerned with having posterity and propagating offspring.

After the flood, there were very few people. In accord with religion, it would have been contrary to nature not to have rendered the debt [cf. Gen. 9:1]. For this reason, the daughters of the pious Lot later sought posterity from him, lest the human race disappear [Gen. 19:31-36]. So, private faults were overlooked for public needs.

Also, in the same [book and chapter]:

C. 4.

He that has relations with one other than his lawful wife is condemned for the crime of adultery.

Let no one be deceived by human laws. All unchastity is adultery. What is not allowed to women, is not allowed to men either. Chastity is expected of men as well as women. Whoever has relations with a woman who is not his lawful wife is condemned for the crime of adultery.

§1. In the same [book, chapter vii]: No one is permitted to know a woman who is not his wife. You have been granted the rights of marriage so that you do not fall into a snare and transgress with another woman.

§2. It is better that the sin remain hidden, than that authority be twisted to excuse it. It is adultery, not only when you sin with another's wife, but also with anyone with whom you have no prerogatives of marriage. The very passage [Gen. 12:15-20] in which the rights of a ratified marriage were threatened, and a wife's modesty undone, shows how grave this crime is. When Abimelech protested that he did not know a woman was another's wife, because the man had said she was his sister, the Lord replied to him [Gen. 20:6], ``I know that you did it with a sincere heart, and therefore I prevented you from sinnning against me, and I suffered you not to touch her.''

We know that God is the governor and guardian of marriage, and that he will permit no violation of the bridal chamber. If anyone does so, he sins against God and is excluded from participation in the Heavenly Sacrament.

Part 3.

Also, Jerome, [in Against Jovinian, I]:

C. 5.

Nothing is more sordid than to make love to your wife as you would to an adulteress.

The origins of love are respectable, but its perversion is an enormity.

§1. It gives no respectable motive for losing one's self control. Hence, the Sentences of Sixtus says, ``He is an adulterer who is too passionate a lover of his wife.'' Just as all passion for another's wife is sordid, so also is excessive passion for one's own.

The wise man should love his wife reasonably, not emotionally. The mere stimulus of lust should not dominate him, nor should he force her to have sex. Nothing is more sordid than to make love to your wife as you would to an adulteress.

§2. Certainly, some claim to take their wives to have children for the sake of society and the human race, yet they often act like beasts. But later, when their wives are pregnant, however, they do not ignore their children, but show themselves to be their wives' husbands, not mere paramours.



The same, [in Book II]:

C. 6.

Virginal chastity is not superior to the marriage of Abraham.

Who does not know that earlier, under another dispensation, all holy people had the same merits as Christians have now? Abraham then had the same goodness in his marriage that virgins have now in their chastity. He served the Law and his own age, let us also serve the Law and our own age, when the End of the World is near [cf. 1 Cor. 10].



Also, Augustine, [in Against Faustus, XXII, xlvii-xlviii]:

C. 7.

The patriarchs took many wives, not to satisfy the pricking of lust, but to have numerous offspring.

One objects that Jacob had four wives, something that was not a crime when it was the practice. But the patriarchs begot their seed from their chosen wives, not out of the desire to satisfy lust, but in view of providing offspring. In the same way, the apostles sweetened their teaching for their astonished hearers, not because they were avid for praise, but because of their love for spreading the Truth.

Part 4.



Also, Augustine, in On the Good of Marriage, [xvi]:

C. 8.

It is better to die without children than to seek offspring

from an unlawful bed.

As it is better to die of hunger than to eat food offered to idols, so it is better to die without children than to seek offspring from unlawful intercourse. But those born of such unions, if they do not imitate their parents' vices and worship God properly, will be respectable and saved. For human seed, no matter whose, is a creation of God. It will go badly for those who use it badly, but it is in no way bad in itself.



Also, Ambrose's Sermon [lxv] on St. John, which begins, ``We said last Sunday'':



C. 9.

Children are not to be sought from a slave girl.

Someone might say, I do not have a wife, and so I shall have relations with my slave girl. Listen what Scripture says to Abraham [cf. Gen. 21:10]: ``Cast out the bondwoman and her son; for the son of the bondwoman shall not be heir with the son of the free woman.'' If the slave girl's son is not an heir, then he is not a son [cf. Gal. 4:7]. Why do you seek a union where the son cannot be heir by succession of blood? He can have no portion in the inheritance, who lacks the prerogatives of birth.

Why then seek a bed where the sons born will bespeak not matrimony but adultery? Why sire children of adultery who will not honor but shame their father? Scripture says [Wis. 3:16], ``But the children of adulterers . . .'' So your woman, if instructed in good behavior so as to merit such a union, deserves to be called a wife. Give your slave girl her freedom and the title of wife, or you will be an adulterer rather than a husband.







Also, Augustine to Claudius, in Against Julian, V:

C. 10.

Adultery is not to be committed to produce children.

So one should not commit adultery to produce children. Likewise, theft should not be committed to feed the holy poor. This should be done, not by perpetrating theft, but by using wisely unrighteous mammon.

Part 5.

Gratian: See then, it is absolutely unlawful for anyone, while his wife is alive, to seek children from a slave girl, or from any other woman, for the children so born are adjudged unworthy of the name of children. For scripture forbids even simple fornication.

Hence Augustine, in Questions of Deuteronomy, [Question xxxvii, on chapter 23]:

C. 11.

Understand that the word mechia includes both unlawful union and any unlawful use of one's members.

The Lord prohibits prostitution and the frequenting of prostitutes who practice their filthy trade publicly [cf. Deut. 23:17]. The Decalogue [Ex. 20:14], however, does not appear to prohibit this public trade by the word mechia, because mechia is nothing but adultery.

§1. The same, on Exodus, [Question lxxi]: All mechia is called fornication in the Scriptures. Now, I do not find in the Scriptures any example of the word to show that all fornication is mechia. But, if all fornication cannot be called mechia, I do not know where in the Decalogue or elsewhere it prohibits the fornication that unmarried men commit with unmarried women.

So, just as the word theft properly means the appropriation of another's thing [cf. C. 14 q. 5 c. 13], we should also understand the word mechia to prohibit completely all unlawful unions and unlawful uses of one's members (just as by prohibiting theft one prohibits robbery, for the part can be inferred from the whole).

Also, Jerome, [on Galatians 5:19]:

C. 12.

Unbridled desire and shameful employment of marriage are licentiousness and impurity.

The act of a fornicator is a major crime because it takes the members of Christ and joins them to a prostitute [1 Cor. 6:15]. Indeed [1 Cor. 6:16], ``the two shall be one flesh.'' One cannot be a faithful believer in Christ and unite one's members to the members of a prostitute. On the other hand, I do not know if an unbeliever violates or builds the temple of his idol when he fornicates. Indeed, through vice the demons are greatly worshiped. I am certain of one thing, the one who fornicates, after believing in Christ, violates God's Temple [1 Cor. 6:19].

Second [Gal. 5:19], the works of the flesh are called ``impurity,'' and ``licentiousness,'' its companion, is included with it. In the Old Law, the Scriptures generally include these among those horrible crimes committed in secret, which are said to be so filthy as to pollute the mouth that speaks of them, or the ears that hear of them. It says [Lev. 15:31], ``You shall teach the children of Israel to take heed of uncleanness,'' including in this passage all unbridled desires, even those acts within marriage that are not performed as though God were present, with shame and modesty, for the sake of children. Such are called licentiousness and impurity.

Also, Gregory, [in Moral Reflections, XII, xii]:

C. 13.

Immoderate relations with women led Solomon into idolatry.

His immoderate relations with and devotion to women brought Solomon to such a state that he built a temple to idols. Indeed he was so addicted to lust and reduced to such infidelity that did not fear to construct a temple to idols before constructing a temple to God.

Also, Jerome, [on Ephesians 5:25]:

C. 14.

The procreation children in marriage is praiseworthy, but a prostitute's sensuality is damnable in a wife.

So, as we have said, the act is conceded in marriage for the sake of children. But the sensuality found in a prostitute's embraces is damnable in a wife.

Part 6.

Gratian: Isidore explains why those born of a slave girl are not called children and do not succeed to their parents' goods, in Etymologies, IX, [v]:

C. 15.

Children inherit their parents' status.

They are free who issue from a free marriage. The children of a free man and a slave girl are of servile condition. Those born always follow the worse part. The children of free-born concubines are called natural children, but only when the product of nature alone, rather than of honest marriage.

§1. Those who are not of legal matrimony follow the mother rather than the father.



QUESTION V

Part 1.

Many authorities prove that purity cannot be destroyed by force. For it is a virtue of the mind, and so cannot be touched by violence. Force can be used on the body, but not on the mind.

So, although one's body has been violated by force, if the purity of one's mind comes out undimmed, than one's chastity is even increased. So St. Lucy is reported to have said to Pascasius, ``If you violate me against my will, I shall receive an even greater crown for my chastity. Let God pass judgment then on my senses and will.''

On this, Ambrose writes, in On Virgins, V:

C. 1.

Virginity of the mind is better than that of the body.

A virginal mind is more desirable than a virginal body. It is well to possess both if that is possible, if it is not, then let us at least be chaste before God rather than men.

§1. A virgin can be violated, but she cannot become an adulterer. Wherever a virgin of God is, there the temple of God is. The brothel can place one's chastity in disrepute, but chastity can remove a place's disrepute.



Also, [to a lapsed virgin, iv]:

C. 2.

An unsullied mind will not sully the flesh.

In reality, the flesh cannot be sullied, unless the mind is sullied first.

Also, Augustine, in On the City of God, [I, xvii]:

C. 3.

No one can be polluted by another's lust.

Since another's lust can pollute no one, what is there to fear? Lust does not pollute if it is another's; if it does pollute, it is not another's. Since modesty is a virtue of the mind, let it be accompanied by fortitude, recognizing that one should endure evils rather than consent to evil.

No one, however generous and modest, has control over what happens to his flesh, but one does control what his mind accepts or rejects. Who in their right mind would think that they had lost their innocence, if someone else's lust was exercised and expended on their bound and overwhelmed flesh?

The same, [in the same place]:

[C. 4.]

Because of the mind's fixed intention, by which the flesh achieves its sanctity, the violence of another's lust cannot take away the body's sanctity, which the mind's perseverance in continence protects. If a woman, corrupt in mind and polluted in will, vowed herself to God but then took herself to a paramour to be corrupted, would we still say she was holy in body while she was going to him, even if her mind's holiness, which sanctifies the body, had already been lost and destroyed? Perish the error, and know that it is better to have a holy body than an intact one.

§1. The same, [xix]: People praise the modesty of Lucretia, an Roman noblewoman of antiquity. When King Tarquin's son worked his lust on her body by force, the guiltless maiden revealed this crime to her husband Collatinus and his neighbor Brutus, and urged those distinguished and valiant men on to vengeance. Then she, unable to endure the foul indignity visited on her, immediately killed herself.

Would one call her an adulteress or a chaste woman? Who would waste time in debate? One distinguished writer proclaimed the truth of this when he said [Livy, Histories, I, lviii], ``Wonderful to report, there were two of them, but only one committed adultery.'' Splendidly and most truly said. Understanding, he recognized in the mixing of the two bodies, the filthy desire of the one and the chaste will of the other. He saw there, not the union of their bodies, but the diversity of their minds. ``They were two,'' he said, ``and only one committed adultery.''

[The same, in the same book, xxvi:

[PALEA. C. 5.

[As one of Christ's faithful, your life was not wasted if your chastity was a laughing-stock to your enemies. You have a great and true consolation if you keep a clear conscience and do not consent to the sins of those who sin against you.

[§1. The same, in the book On the Two Souls, [x]: There is no sin without the will.]

The same, in On the Free Will, I [v]:

[C. 6.]

Who would doubt that innocence is in the mind, since it is a virtue? Thus, a rapist cannot destroy it by violence.

§1. Also, Jerome, in On the Letter to the Romans, I: One cannot be an adulterer with the body, without first becoming an adulterer with the mind.

[§2. PALEA(21) The same, in On Luke, II: Imagine that during a persecution a virgin were made a prostitute. Before the Gospel, this one remains a virgin, because she did not sin with her will; but before the law, she is repudiated as violated.

[§3. The same, in the book Hebrew Questions, [on Genesis 12:13-16]: Not force, but only her will, can sully a woman's body.]

§4. Also, Augustine, in the book On Holy Virginity, [viii]: As no one uses the body immodestly unless sin has been conceived in the spirit, so no one can preserve bodily innocence unless chastity has already been instilled in the spirit.



The same, [in Letter cxxii], to Victorianus:

C. 7.

One cannot violate the body's modesty if the mind

is kept undefiled.

Women who are devoted to their families will always be present to God by their prayers, and God will not allow anyone's hostile lust to invade their chaste members. But, if he does allow this, consent to the pollution will not stain their minds, as they defend their flesh from crime. For, no matter what is done to her, she will never consent to it.

The attacker alone will sin, and the violence she suffers will be counted not a corruption of her morality, but a injury she has suffered. Chaste integrity will so reign in her mind that none can harm the inviolate modesty of her body, even if her members are overpowered.



Also, Isidore, in Synonyms, II, [i]:

C. 8.

If the mind is pure of taint, the flesh does not sin.

The body cannot be corrupted, unless the mind is corrupted first. For when the mind is free of taint, the flesh does not sin.



Also, Augustine, [in Letter clxxx], to Bishop Honoratus:

C. 9.

Innocence of the flesh is not lost if it is preserved

by the mind.

We should more fear that the chastity of Faith be lost by corruption of the interior senses, than that a woman be violently raped in the flesh. Violence cannot violate innocence if the mind preserves it. For there is no violation of the flesh if the one attacked does not consent to the impure use of her flesh, rather she endures unwillingly what another does to her.



Also, John Chrysostom, [that is, the author of the Incomplete Work] on Matthew, [Homily xxxii, on chapter 19]:

C. 10.

Without the will, one neither sins nor does a just work.

As there is no sin without the will, so justice cannot be derived from an unintended action. Many strive to preserve the body's chastity, yet commit adultery with their will, as the Lord said [Mt. 5:28], ``Anyone who so much as looks with lust at a woman has already committed adultery with her in his heart.''

Therefore the will often sins without any act. So that continence is glorious, which does not transgress merely because the weakness of the body prevents it, but which focuses the will on a holy intention.

Part 2.

Also, Jerome, in the letter to Eustochius [on the protection of virginity]:

C. 11.

A polluted mind does not preserve fleshly virginity.

Paul the Apostle, a vessel of election steeped in the Gospel of Christ, disciplined his body and reduced it to slavery because of the pricks of the flesh and the lure of vice [cf. 1 Cor. 9:19], lest while preaching to others he himself be found unworthy [cf. Rom. 7:23]. Nevertheless, he still found another law in his members, fighting against the law of his mind, and holding him captive to the law of sin [cf. 2 Cor. 11:27]. So, after nakedness, fasting, hunger, prisons, beatings, and sufferings, he still looked at himself and exclaimed [Rom. 7:24], ``Unhappy man that I am! Who will deliver me from the body of this death?''

So do you still think that you can trust yourself? Beware then, I warn you, so that you will not have to say when you speak to God [cf. Amos 5:2], ``The virgin of Israel is cast down and there is none to raise her up.'' I would boldly say that, although all things are possible for God, even he cannot restore a virgin after she has ruined herself. He can free one from punishment, but he cannot restore the crown of virginity to one who has lost it.

§1. Let us pay attention to this prophecy lest it happen to us [cf. Amos 8:13]: ``Good virgins too have been cast down.'' Notice that it says, ``Good virgins have been cast down,'' because there are also bad virgins. ``One will look at a woman,'' it says [cf. Mt. 5:28], ``and lust after her; he will already have committed adultery with her in his heart.'' So virginity of mind is lost. These were bad virgins, virgins of the flesh, not of the spirit. They are the foolish virgins without oil, whom the bridegroom will exclude [cf. Mt. 25:11-13].

So, if these were virgins, yet their bodily virginity could not save them because of their faults, what will happen to those who prostitute Christ's members and turn the Temple of the Holy Spirit into a brothel? Let these hear what the prophet says [Is. 47:1-3]: ``Come down, sit in the dust, O virgin daughter of Babylon; sit on the ground. There is no throne for the daughter of the Chaldeans, for you shall no longer be called delicate and tender. Take a millstone and grind meal. Take off your veil, make bare your legs, pass over the rivers. Your nakedness shall be discovered, and your shame shall be seen.''

And here, after entering God's bridal chamber, after the kiss of the her brother-in-laws and the bridegroom, she is stripped naked, of whom prophecy had said [Ps. 45 (44):10], ``The queen stood on your right hand, in guilded clothing.'' Now her hind parts are exposed before her. She will sit by the waters of solitude, and from her vessel she will wash the feet of every passerby, until she has reached the fullness of her pollution [cf. Ez. 16:15].

It would have been better for one to have entered marriage, to have traveled by the clear way that leads on high, rather than to have fallen into the depths of Hell. May it not happen, I pray, that the Daughter of Zion become a harlot city [cf. Is. 1:21], that demons enter the home of the Trinity, and that the sirens and heretics build their nests there [cf. Is. 34:11].

Part 3.

Also, Augustine, in On the Christian Faith:

C. 12.

Chastity can still be lost with an intact body.

Lust seeks and desires, not just the touches and caresses, but also the sight of women. You do not have a pure mind if you have impure eyes, because an impure eye heralds an impure heart. Although the tongue is silent, inside impure hearts harken to each other and, following the lust of the flesh, they delight in each other's mutual desire. Thus chastity flees even from bodies untouched by the pollution of impurity, on account of their habits.

Also, Gregory, [in Moral Reflections, XXI, ix]:

C. 13.

One commits adultery when one sinfully desires a marred or an unmarried woman.

``Anyone who so much as looks with lust at a woman, has already become an adulterer with her in his heart.'' [cf. Mt. 5:28] Now Greek uses the word moechus for adulterer, because it prohibits looking not only at another's wife but also at any other woman. This shows plainly that, when an unmarried women is desired with lust, adultery can be committed by sight alone.

Nevertheless, this and many other passages clearly show that there is a ranking of lusts. Here it speaks of the lust of those in Holy Orders. These are here stained by adultery, where other persons might only be guilty of lust.

Part 4.

Gratian: Although one overcome by violence has not lost her innocence, she might hesitate to consider herself the same as an untouched virgin.

So Pope Leo, [in Letter lxxxv or lxxxvi, 5, to the bishops of Africa]:

C. 14.

Those who have been raped are not the same as

an untouched virgin.

Those handmaids of God who have lost their untouched modesty through the violence of barbarians have become even more praiseworthy through their humility and shame, even if they are not the same as untouched virgins. As every sin arises from the will, and the mind cannot be stained against its will when the flesh is violated, so sin is not imputed to those who have suffered or died so as not to sully their minds.

Gratian: Therefore, since those who suffer violence do not lose their modesty, they can never be accused of fornication, nor have they committed the crime of adultery.

Thus Augustine said, in his book On the Good of Marriage, [iv], ``Adultery is committed when, under the impulse of one's own lust, one sleeps with a consenting man or woman, in violation of the conjugal covenant. Thus fidelity, which makes the mind good in physical and prohibited matters, is broken. Even one's bodily health, by which life is sustained, must be placed second to this.''

Also, Isidore, on Exodus 20[:14]:

C. 15.

One who forms a union with another outside of matrimony commits adultery.

``You shall not commit adultery.'' That is, no one should form a union with a woman outside of marriage to quench his lust. He who goes in to a woman other than his own spouse commits adultery.



Also, Augustine, in On Adulterous Marriages, [I, xiii]:





C. 16.

Whoever knows another, while his wife is alive, commits adultery.

It think that no Christian will deny that he is an adulterer, when out of desire for his wife, who is sick for a long time, away for a long time, or living continently, he has sex with another woman.



Part 5.






Gratian: So, one cannot call the woman a fornicator or an adulteress. For none can accuse her of joining the man because of the stimulus of her own lust, or because of her consent to another's lust, or because of her husband's long sickness, absence, or desire to live continently. Rather she endured oppression through another's violent lust. Thus there is no excuse to send her away.

When the Jews asked Christ whether one might dismiss one's wife for any reason, he responded [cf. Mt. 19:4-5], ``Have you not read that the Creator from the beginning made them male and female? What therefore God has joined together, let not man put asunder.'' Then he concluded his reply by saying that no one could dismiss his wife, save on account of fornication [Mt. 19:9].

On this the Apostle said, in [1] Corinthians [7:10], ``But to those who are married, not I, but the Lord commands that a wife is not to depart from her husband.'' So one should understand that, when a husband and wife are joined together by conjugal affection, they henceforth cannot leave one another.



Hence Ambrose, in On the Hexameron, IV, writes:

C. 17.

However the chosen man changes, he cannot be sent away.

The chosen husband has become horrible and uncivilized. Can another husband to be chosen? A horse loves its mate, and, if either is changed, the other does not know how to carry the yoke and thinks it is not whole. Do you repudiate one yoked with you and think to change again? Change and, if that one is found lacking, take yet another rival at once. But could you then still claim injury to your modesty for any imaginable reason?



Also, Augustine, [in On the Lord's Sermon on the Mount, I, xxxii]:

C. 18.

The same applies to wives.

If someone has a wife who is sterile, deformed in body, weak in the members, blind, deaf, dumb, affected by some disease or by pains and labors, or has a quality more horrible than can be imagined (except fornication), let him bear with her for the sake of union and fidelity.





Also, Jerome to Oceanus, on the death of Fabiola:

C. 19.

A man cannot lawfully dismiss his wife, except on

account of fornication.

The Lord commands that wives cannot be dismissed, except on account of fornication, and that, when one has been dismissed, she must remain unmarried. Whatever he commanded for men, also applies to women. Nor are adulterous wives to be dismissed, but adulterous husbands kept.

Also:

[C. 20.]

Among us, whatever is not permitted to women, is not permitted to men; both are held to the same conditions.

Part 6.

Also, from the Twelfth Council of Toledo, [c. 8]:

C. 21.

Let one who dismisses his wife, except on account of fornication, be deprived of Communion.

It is the Lord's command that, except on account of fornication, a man may not dismiss his wife [cf. Mt. 19:6]. So, anyone who rashly leaves his wife, for any reason except the aforesaid crime, is to be deprived of Communion and excluded from the whole Christian assembly until he sincerely embraces and accepts the company of the wife he has abandoned.

So, those whom a priest has admonished for their own correction, once, twice, and three times, and who still refuse to return to live with their wives, are to be stripped of their ranks and any offices from the royal dignity. They shall be ineligible for any gratuitous showing of favor, as long as they are culpable of uniting their flesh in a rival union.

Nicholas, to the questions of the Bulgarians, [c. 96]:

[C. 22.]

The same.

If your wife plots anything against you, or accuses you of anything, yet she may still not be cast out or held in opprobrium, except on account of fornication.

Part 7.

Gratian: But there remains the question of whether both are subject to the same conditions, since it appears that men cannot communicate with adulterous wives, but wives may stay united with adulterous husbands.

On this, Pope Innocent writes, [in Letter iii, 4, to Bishop Exsuper]:

C. 23.

Adultery by either sex is to be punished in the same way.

The Christian religion condemns adultery by either sex equally. Yet women do not lightly accuse their husbands of adultery or take revenge by exposing the sin. In contrast, men freely take counsel with priests about putting away adulterous wives. Thus women are deprived of Communion and their crimes are exposed, but men cannot be deprived of Communion, because what they have done lies hidden.

From now on, both will be charged, if a crime is detected. Thus, by treating this matter in the same way, motives for revenge will be removed, because accusations will cease.



QUESTION VI

Gratian: So, she cannot be dismissed since she is innocent of fornication. But let us suppose that she were an adulteress. Could an adulterer send her away because of her fornication?

It appears that one guilty of a crime cannot punish another for the same crime. Hence, when the Jews accused the adulteress, they received a sentence of equity from the Lord [Jn. 8:7], ``Let him who is without sin among you be the first to cast a stone at her.'' The Gospel also commanded [cf. Lk. 6:42], ``You Hypocrite, first cast out the beam from your own eye, and then cast out the speck from your brother's eye.''

Hence Augustine wrote, in On the Lord's Sermon on the Mount, I [xxviii]:

C. 1.

A fornicator cannot send away his wife on

account of fornication.

There is nothing more wicked than sending away one's wife on account of fornication when one is himself guilty of fornicating. It is said [Rom. 2:1], ``For wherein you judge another, you condemn yourself. For you who judge do the same things yourself.'' Whoever wishes to cast out his wife on account of fornication must first be purged of fornication. I say the same thing to women.

The same, in The Words of the Lord, Tract [or Sermon] lxvi:

C. 2.

One should himself be what he demands in his wife.

If you take a wife, keep her as a wife. If you wish to find a certain quality in her, let her find that quality in you. What young man does not want the wife he takes to be a chaste woman? If one takes a virgin, who does not want her to be untouched? Do you want her to be pure? Be pure yourself. She cannot be so, if you cannot.

The same, in Letter [clxxiv], to Paxentius, count of Arria:

C. 3.

One who does not wish to be judged should

not accuse another.

It is unjust to judge another while refusing to be judged oneself.

The same, in On Adulterous Marriages, [II, viii]:

C. 4.

Husbands should be punished more for adultery than wives.

Husbands should be outraged to hear that adulterous husbands are punished by the same penalties as adulterous women. Men should be punished more severely because they are expected to excel in virtue and guide women by example.






The same, in Ten of the Heart, [iii]:

C. 5.

As the husband is head of the wife, so it is more serious for him to commit adultery than for his wife.

``You shall not commit adultery.'' [Ex. 20:14]that is, you shall not go to a woman other than your wife. Do you expect this from your wife and yet refuse to reciprocate with your wife? You ought to excel over your wife in virtue (for chastity is indeed a virtue). Are you captive to the impulses of lust? Do you expect your wife to be victorious in this while you lie vanquished? As the head of your wife, you lead her to God. Would you be willing to follow a head like yourself?

The husband is the head of the wife [Eph. 5:23]. So where the wife behaves better than the husband, the home is turned upside down on its head. If the husband is the head, the husband should behave better, and so lead his wife in all good deeds.

Gratian: These authorities all show that an adulterer cannot send away an adulteress.





QUESTION VII

Part 1.

Gratian: The next question is whether one who sends away his wife on account of fornication can take another while she is alive. Augustine testifies that he cannot, in the book On The Good of Marriage, [vii], where he says:

C. 1.

Fornication cannot dissolve the bond of marriage.

When a divorce intervenes, the nuptial covenant is not abolished. Although the spouses are separated from each other, those who join them after the repudiation commit adultery with them.

The same, in On Adulterous Marriages, II [iv-v]:

C. 2.

It is proved that once a marriage has begun it cannot be dissolved for any reason.

A wife may lawfully be sent away on account of fornication, but the bond remains. For this reason, whoever takes a woman sent away on account of fornication is guilty of adultery [Mt. 19:9b].

Just as anyone excommunicated as guilty of crime still possesses the Sacrament of Regeneration, so one separated from her husband never loses the Sacrament of Marriage, even if she is not reconciled to her husband.

She will lose it when her husband dies. A guilty excommunicate will not lose the Sacrament of Regeneration, even is he is never reconciled, because God never dies.

The same, on Paul's letter to the Corinthians:

C. 3.

When a husband withdraws from a wife, or a wife from a husband, on account of fornication, each is prohibited

from marrying another.

The Apostle says [1 Cor. 7:10-11], ``To those who are married, not I, but the Lord commands that a wife is not to depart from her husband, and if she departs, that she is to remain unmarried or be reconciled to her husband.''

She may have withdrawn for the cause which the Lord permitted [Mt. 19:9]. But if a woman can lawfully send away her husband on account of fornication, how should we understand his later words [1 Cor. 7:11], ``And let not a husband put away his wife,'' where he did not add, ``except on account of fornication''? As the Lord permitted this, all we can say is that he intended the same provision to be understood. So, if one sends her away for the sake of fornication (which is permitted), he must remain without a wife or be reconciled to his wife.

§1. And a little later: The Lord permitted the wife to be sent away on account of fornication [Mt. 19:9], but he did not command what he permitted.

The same, in On the Lord's Sermon on the Mount, [I, xxv]:

C. 4.

A husband might send his wife away on account of fornication (which the Lord [Mt. 19:9] gave as an exception). But she is not permitted to marry while the husband from whom she withdrew is alive, nor may he take another while the wife he sent away is alive [1 Cor. 7:10-11]. It is even more wrong for him to commit debauchery with anyone.

From the Council of Milevis, [c. 17]:

C. 5.

A man dismissed by his wife, and a wife dismissed by a husband, are subjected to penance, unless they live continently or are reconciled to each other.

We decree that, in accord with evangelical [Mk. 10:11-12] and apostolic [1 Cor. 7:10-11] discipline, neither a man dismissed by his wife, nor a wife dismissed by her husband, may marry another. They must remain as they are, or be reconciled to each other. If they hold this in contempt, let them be subjected to penance.

Augustine, in On the Lord's Sermon on the Mount, [I, xxv]:

C. 6.

One who takes a woman sent away by her husband

commits adultery.

To confirm that a wife should not be sent away lightly, the Lord made an exception only for fornication. He orders that all other possible annoyances be sustained bravely, for the sake of conjugal fidelity and chastity. He calls a man an adulterer who takes a woman released from her husband in marriage [Mt. 19:9].

Also, Jerome, to the priest Amand:

C. 7.

It is proved that, if one marries another while her husband is alive, it is adultery.

The Apostle, cutting off all excuses, openly declares a woman an adulteress if she marries another while her husband is alive [1 Cor. 7:10-11]. I care nothing for what you might object concerning the violence of abductors, guaranties given by a mother, the father's authority, the battalions of relatives, slaves' tricks, or the losses of family property. As long as the husband lives, even if he is an adulterer, even if he is a homosexual, even if he has cooperated in every crime, and his wife has abandoned him for those crimes, he is still accounted her husband. Thus she may not lawfully take another husband.

The Apostle did not decree this by his own authority, but by Christ speaking in him. He mirrors the words of Christ, who says in the Gospel [cf. Mt. 19:9], ``Whoever puts away his wife, except on account of fornication, makes her to commit adultery, and he who takes a woman who has been put away is an adulterer.''

The apostles understood the weighty obligation of marriage and said [Mt. 19:10], ``If the case of a man with a wife is so, it is not expedient to marry.'' To which the Lord said [Mt. 19:12], ``Let him accept it who can.'' Thereupon, through the example of three kinds of eunuchs [Mt. 19:12], he proposed the blessed choice of virginity, which is not bound by any law of the flesh.

Also, from the Council of Elvira, [c. 9]:

C. 8.

A believing woman, who has sent away her husband as an adulterer, may not lawfully marry another.

A believing woman, who has left a believing but adulterous husband, in order to take another, is prohibited from having him. If she does take him, she may not receive Communion until her abandoned husband has left this world, unless perchance a sickness onto death requires giving it to her.

Also, from the Council of Pope Martin, [that is, from the capitula of Martin of Braga, c. 80]:

C. 9.(22)

One who enters multiple marriages should be made

to do penance.

If one enters multiple marriages, let him do penance. But the penitent's quality of life and belief may shorten the time.

Also, Augustine, in On Adulterous Marriages, I, [ix]:

C. 10.

He who sends away his wife because of fornication and takes another is proved to commit adultery.

In a certain sense it is incorrect to say that, if a man does not know, he does not sin, for there are sins in ignorance, although they are less grave than those with knowledge. Likewise, one cannot rightly say that, if a man sends away his wife because of fornication and takes another, he does not commit adultery [cf. Mt. 19:9]. It is adultery when they take others after having left their first on account of fornication, but it is less so than when others send away their wives without the excuse of fornication.




Part 2.

Gratian: There are also degrees of fornication, for an adulterer is worse than a fornicator, and one offends more by dismissing one's wife and marrying another, than by dismissing her and merely fornicating with another. Likewise it is worse for one with a wife to approach his neighbor's wife, than it is for one without a wife to violate another's bedroom, or for a married man to approach a single woman. But worse than all these are those who commit incest, and beyond that are those who sin against nature.



Hence Augustine, in On Adulterous Marriages:







[C. 11.]

``The evil of adultery is worse than fornication, but incest is still worse. It is worse to sleep with one's mother than to sleep with another's wife. But what is done against nature is the worst of all, as when a man makes use of a woman's member that is not meant for this purpose.

Natural use, when it exceeds the bonds of moderation, is a venial sin if with one's wife, but a damnable one if with a prostitute. When one has sex in an unnatural way with a prostitute that is execrable, but it is even more execrable when done with one's wife.

The Creator's command and the Order of Creation renders it much more tolerable to do something permissible, even to excess, than to do something not permissible only once or without excess.




Also, Ambrose, in a book on the patriarchs, [On Abraham, I, vi]:

C. 12.

Intercourse in the natural way is less serious than an act against nature.

The holy Lot offered his daughters' modesty [Gen. 19:8]. That was a crime of impurity, but at least it would have been intercourse in a natural way, instead of an act against nature. He valued hospitality, something kept inviolate even among barbarians, over the shame of his own house.

Also, Augustine, in Confessions, III, [vii]:

C. 13.

It is proved that a crime against nature is worse.

Crimes against nature are always and everywhere to be repudiated and punished. Such were those of the Sodomites [Gen. 19:5]. Even if people everywhere did what they did, they would still be guilty under divine law [Lev. 18:22; Rom. 1:26; 1 Cor. 6:9], which has forbidden people to perform such acts. Indeed our very communion with God and nature, of which he is the author, is violated when we pollute ourselves by perverted lust.

Also, in Against Jovinian, I:

C. 14.

An act against nature is more disgraceful and criminal than either fornication or adultery.

The natural act is licit in marriage, and illicit in adultery. An act against nature is always illicit and, without a doubt, disgraceful and criminal. So the Apostle [Rom. 1:26] explains that this is more damnable for both men and women, than if they sinned in a natural way by adultery or fornication.

Part 3.

Also, Isidore, [in On the Supreme Good, II, xxxix]:

C. 15.

Every impure act of pollution is fornication, but there are different sins of fornication.

Sinning through fornication is rampant among human beings and, as it is very pleasurable and captivates the mind, it is universally rampant. Carnal fornication is adultery, spiritual fornication is idolatry. The Lord was speaking of spiritual fornication when he said [Mt. 5:28], ``Anyone who so much as looks with lust at a woman has already committed adultery with her in his heart.''

Every impure act of pollution is fornication, although one can degrade one's self through a variety of filthy lusts. Because of the pleasure of fornication, differing crimes arise, which close the Kingdom of Heaven by separating people from God.

§1. Among the seven vices, the sin of fornication is the worst because it violates the body, which is God's temple [1 Cor. 6:19]. Some women become slaves to lust, like irrational animals; I would compare them to dumb beasts. Yet even female sheep, once they have conceived, stop offering themselves to the males.

Also, from Clement's [First] Letter [to James]:

C. 16.

Adultery takes second place in punishment.

Is adultery the worst sin? It takes only second place in punishment, where those who betray God have the first place, even if they live soberly.

Gratian: These authorities evidently shown that whoever sends away his wife because of fornication cannot take another while she is alive, and, if he takes another, he will be guilty of adultery.



Part 4.

§1. Reply to the preceding. These authorities obviously speak about those whose weaknesses of the flesh do not prevent them from practicing continence, or about those who have rendered themselves unworthy to remarry because they separated without good cause.

Hence Ambrose, on Paul's [First] Letter to the Corinthians [7:[10-11]]:

[C. 17.]

`` `A wife is not to depart from her husband, except on account of fornication, and if she departs, she is to remain unmarried, or be reconciled to her husband. And let a husband not put away his wife.' So he does not specify for the man what he did for the woman, because the man can lawfully take another.''

Also, Gregory III to Bishop Boniface, [in Letter iv]:

C. 18.

One who is weak may lawfully marry another, if his sick wife cannot render the debt to him on account of her infirmity.

You have asked what a woman's yoke-mate should do, if she is weakened by sickness and cannot render the debt to him? He would best remain as he is and practice abstinence, but, because that is very difficult, one who cannot control himself may marry instead. But let him continue to support the woman disabled by illness and not cast her off as for a detestable fault.

Part 5.

Gratian: The text of Ambrose [C. 32 q 7 c. 17] appears to have been inserted by forgers. The text of Gregory [C. 32 q. 7 c. 18] is wholly contradicted by the sacred canons and, indeed, by evangelical [Mt. 19:9] and apostolic teachings [1 Cor. 7:10-11].

Some are willing to accept Ambrose's decision. But they think it does not refer to every kind of fornication, as if a man might lawfully send his wife away for any kind fornication and then take another while she is alive. They understand it to refer only to incestuous fornication, as when a wife had allowed herself to be publicly seduced by her husband's father, son, brother, uncle, or like relative.

They say this because the woman will thus have already rendered herself unlawful to her husband forever, because affinity arises through sex with blood relatives in the first, second, or third degree. Thus he may lawfully [C. 35 qq. 2 & 3, c. 3] send her away and take another, even while she is alive. If someone accepts this argument, then the law applies not only to a husband, but to a wife whose husband had fornicated in this way.

But we counter that Ambrose uses the word ``man'' not to refer to bodily sex, but to one with strength of character, and the word ``woman'' to refer to one with weakness of character. And, because no authority permits another wife to be taken while the first wife is alive, what Ambrose says about this kind of fornication cannot mean that a man who has sent one wife away may take another while she was alive.

Rather, after a fornicator of either sex (because, as said above, he uses the word ``woman'' for both sexes, since ``woman'' here indicates the one corrupted by lechery) dies, the man or woman who did not fornicate, may be joined to another. But an adulterer, if he outlives his spouse, can never be joined to others.

That also explains this chapter from a certain council:

C. 19.

He whose wife had slept with his brother is not denied

lawful marriage.

A certain woman had slept with her husband's brother. It is decreed that the adulterers may never be joined in marriage. But the man whose wife had been seduced is not denied lawful marriage.

So also one is to understand this passage from the Council of Mainz:

C. 20.

One who had sex with anyone under his control must separate and never be joined in marriage.

If anyone took a widow as a wife and then fornicated with his stepdaughter, or if one fornicated with two sisters, or with two brothers, or with a father and a son, or with a brother's widow, or with a niece, or with a mother-in-law or daughter-in-law, or with a cousin or an uncle's daughter, or with an uncle's widow, or with an uncle's stepdaughter, let them separate, and we command them never to be joined in marriage.

The same:

C. 21.(23)

One who pollutes his wife's sister can have neither.

One who sleeps with two sisters, one of whom is his wife, may have neither of them. Nor may the adulterers ever be joined in marriage.

Also, Gregory:

C. 22.

Let him who leaves his wife on account of adultery

keep continence.

Those who catch their wives in adultery may not take another wife, nor may she take another husband, as long as the are both alive. If the adulteress dies, her husband, if he wishes, may marry, but only in the Lord. The adulteress may never marry, even if her husband dies. Let her lament for the rest of her life in bitter penance.

Also, from the decrees of Pope Zacharias:

C. 23.

He who pollutes his wife's sister may have neither.

Had you lain with your wife's sister? If so, you may have neither. And, if your wife had not been unaware of the crime, and cannot contain herself, she may marry whomever she wishes in the Lord. But you and the adulteress have no hope of marriage, but must do penance under a priest's direction as long as you live.

Also, from the Council of Trebur:

C. 24.

A man who slept with his mother-in-law, stepdaughter, or sister-in-law cannot marry, but lawful marriage is not

denied to their husbands.

If one had slept with his mother-in-law, he can marry neither. But her husband can take another, when he wishes, if he cannot be continent.

§1. The rule is the same for him who had slept with his step-daughter or his wife's sister.

Gratian: Several understand the passage near the end of the Council of Mainz [C. 32 q. 7 c. 24] to refer, not to lawful unions, but to fornication. Thus fornicators must separate from each other and lose hope of marriage.

What Gregory said to Boniface [C. 32 q. 7 c. 18] relates to a temporary concession to English, whom St. Gregory had allowed to contract marriages within the fourth and fifth generations [C. 35 qq. 2 & 3, c. 20; cf. C. 35 q. 5 c. 2 §5]. Otherwise, what Augustine said in On the Lord's Sermon on the Mount [C. 32 q. 5 c. 18], ``If someone has a wife who is sterile . . ,'' would be meaningless.



Part 6.

Also, Nicholas, to Charles, bishop of Mainz:

C. 25.

A marriage may not be lawfully dissolved because of sickness or bodily defect.

Sometimes one of those who contracted matrimony while healthy is struck by insanity or some other illness. Their marriage cannot be dissolved because of the illness. The case is the same for those who are castrated by their enemies, cut in their members, or mutilated by barbarians.

Also, Pope Fabian:

C. 26.

A mad man or woman cannot contract matrimony.

Neither a mad man, nor a mad woman, may contract matrimony. But, if they have contracted it, let them not be separated.

Part 7.

Gratian: The foregoing indicates that this man cannot lawfully send away his wife and take another, because a particular conjugal bond exists between them, which separation does not dissolve.

Hence Augustine says, in the book On the Good of Marriage, [vii]:

C. 27.

One may not lawfully send away a sterile wife and take another for the sake of fecundity.

The social bond is so great, that, although it is entered for the sake of procreation, yet it cannot be dissolved even for the sake of procreation. A man might send away a sterile wife, and take one from whom he could have children, but this is not lawful.

§1. Also, [xv]: The bound of nuptials exists, even if offspring, for whose sake it was entered, did not arise due to evident sterility. So, spouses, who now know that they will never have children, may not lawfully separate and unite with others for the sake of children.

If they do, they are committing adultery with those to whom they have joined themselves, because the previous marriage still exists. Among the patriarchs of antiquity [cf. Gen. 16:1-5], one had the right, with his wife's full consent, to unite with another woman. Then common children would be born from his seed through intercourse with that woman, while the authority and power over them stayed with the first. Whether this was right or wrong, I will not rashly say.

The same, in the same work:

[C. 28.]

The first vows of marriage between both spouses exist in such a way that, while they live, they are more each other's spouse, even after being separated, than they are the spouses of those to whom they later unite.

§1. Later on: Among the living there remains a peculiar conjugal bond, which neither separation nor union with another can take away. This is just like an apostate soul, who withdraws from marriage to Christ and loses the Faith, but does not lose the Sacrament of Faith received through the washing of regeneration. Beyond doubt, it is restored to one who lost it by withdrawing, if he returns. Indeed, for one who withdraws it increases his punishment, rather than the reward of his merit.




QUESTION VIII

Gratian: Since this proves that one cannot send away his wife and take another, the next question is whether one may lawfully sin in order to bring an unbeliever to the Faith. Augustine, in On Adulterous Marriages, [I, xxiv], declares that one may not, saying:

C. 1.

One must not abandon a vow of continence, even for an unbeliever who promises to become a Christian.

Not only may one not commit adultery (which everyone who sends away his own wife and takes another commits, even if he does so to make her a Christian), but neither may an unmarried person who has vowed continence to God sin, using the justification that he will take as wife a woman who promises to become a Christian if he marries her. What was lawful for one before making vows, becomes unlawful after one has vowed never to do it.

This holds only if one has vowed something that should be vowed, such as perpetual virginity, or widow's chastity in the case of those who married but are now freed of the conjugal bond or conjugal continence; or, if faithful chaste spouses have, by mutual consent, vowed to release each other from the carnal debt they owe each other (which is a proper vow only if both vow). Vows like these, which may be rightly vowed, can be broken under no conditions once people have vowed them, for they are vowed unconditionally.




CASE THIRTY-THREE



Gratian: A man was prevented by a hex(24) from rendering the debt to his wife. Meanwhile another man secretly seduced her. She separated from her husband and married her seducer publicly. She confessed the crime she had committed only in her heart to God. The first man regained his capacity to know her, and he claimed her as his wife.

After taking her back, he vowed to keep continence so that he might more advantageously give himself to prayer and approach the Flesh of the Lamb in a state of purity. But his wife did not consent. It is asked:

First, may a woman leave her husband because he cannot have intercourse?

Second, after separating, can she marry a man with whom she had earlier fornicated?

Third, can a crime be remitted through confession in the heart alone?

Fourth, can one render the debt to one's wife during times of prayer?

Fifth, can a husband vow continence without his wife's consent, or can he extort her permission for this vow through fear and threats?



QUESTION I

Part 1.

Gratian: Both evangelical and apostolic authority prove that a wife cannot be separated from her husband when he cannot render the debt. Christ says in the Gospel [cf. Mt. 19:9], ``It is not lawful to send away one's wife, except on account of fornication,'' because, as Augustine [C. 28 q. 1 c. 5] explained, one of them will either become a fornicator or try to lead another into fornication.

Also, the Apostle says [Rom. 7:2], ``A married woman, is bound by the law as long as her husband is alive''that is, not by the law of rendering the debt to him, but by that of not leaving him for another. Also [cf. 1 Cor. 7:10], ``To those who are married, not I, but the Lord commands that a wife is not to depart from her husband, except on account of fornication.''

Therefore, evangelical and apostolic authority prohibit a wife from leaving her husband, except for the cause known to everyone. And, if she withdraws for that reason, she must remain unmarried, or be reconciled with her husband [1 Cor. 7:11]. Hence, it is understood that incapacity to render the debt cannot divide a marriage.

§1. Reply to the preceding: Marriage is consummated by its use. As was proved above [d. G. p. C. 27 q. 2 c. 26], after it has been consummated by use, a husband may not lawfully send his wife away, or a wife lawfully separate from her husband, except on account of fornication. But before it has been consummated, incapacity for intercourse dissolves the bond of matrimony.



Hence Gregory writes to John, bishop of Ravenna:

C. 1

A woman can lawfully marry another because her husband's frigidity prevented him from knowing her.

You have asked about those joined in matrimony who could not have intercourse. Can he or she take another? About such, it is written [Lombard Laws, I, ix], ``If a man and a woman are joined together, and afterwards the woman says the man could not have intercourse with her, and a just trial proves this to be true, let her take another. But if he takes another, let them be separated.''

Also, from a letter of the same:

[C. 2.]

You have asked about those who say they cannot know their wives because of their frigid nature. Let such have his wife as a sister. If they wish to rescind the conjugal bond, let both remain unmarried. If one is not naturally compatible with one woman, how can he be compatible with another? If the man wants to take another wife, it is obvious that, at the Devil's suggestion, he was burning with hatred towards his first wife and was attempting to dismiss her by a duplicitous lie.

But if the woman pleads at law and says, ``I want to be a mother and procreate children,'' let both swear on sacred relics, with seven relatives as oath-helpers,(25) that they never engaged in fleshly intercourse, and thus did not became one flesh. In this case it appears that the woman can contract a second marriage. I allow this because of human weakness of the flesh [cf. Rom. 6:19].

The man of frigid nature must, however, remain without a wife. If he enters another union, then all who swore are guilty of the crime of perjury, and after doing penance, they are to be made to accept the first marriage.

Part 2.

Gratian: This must be done when both parties give the same testimony. But, if the man asserts that he rendered the debt to his wife, and she dissents, there arises the question of whom to believe.

The council held at Compiègne legislated on this:

C. 3.

If a wife denies that her husband knew her, one should give benefit of doubt to the husband.

If anyone takes a wife, and has her for some time, and then the woman herself denies he ever had intercourse with her, but the husband says he did, one is to give the benefit of the doubt to the husband. For the husband is the head of the wife.

Part 3.

Gratian: So, incapacity to render the debt dissolves the bond of marriage. But this legislation applies to a natural incapacity. In this case, she separated from her husband, not because natural frigidity prevented the conjugal debt, but because it was prevented by a hex.

Hence the question remains whether she may, in that case, lawfully withdraw from her husband and take another?

On this, Hincmar, archbishop of Rheims, wrote:

C. 4.

On those who cannot have intercourse because of a hex.

If, through sorcery or a clandestine hex, both of which are diabolical violations of justice and forbidden by God's decree [Ex. 22:18; Deut. 18:10; Gal. 5:20], intercourse cannot occur, let those affected be exhorted to make sincere confession of all their sins to God and a priest. Then, with a contrite heart and a humble spirit, let them propitiate the Lord with profuse tears, greater works of charity, prayers, and fasting. And, as God grants, let the Church's ministers, using exorcisms and bestowal of the Church's other healing gifts, heal them if the Lord, who at Abraham's prayer cured Abimelech and this house [cf. Gen. 20:17], permits this.

If he does not heal them, let them separate. But, if they form marriages with others, they cannot be reconciled to the spouses from whom earlier separated, as long as those whom they joined later are alive in the flesh, even if they regain the capacity for intercourse.

Gratian: This appears to contradict the previous capitulum of Gregory [C. 33 q. 1 c. 2]. According to it, she must separate from the second husband and to return to the first if he regains capacity for intercourse. But here she cannot be reconciled with the first, as long as her husband from the second union is alive.



QUESTION II

Part 1.

Gratian: It was demonstrated above [C. 31 q. 1 c. 5] that a woman, with whom a man had earlier fornicated, can marry after they separate, for the man is now dead to her. As the judgment of the Church has separated her from him, she is free from him by law. Hence, according to the Apostle [1 Cor. 7:39], she may marry whomever she wishes, but only in the Lord.

§1. But one may ask whether he should be compelled to return to her if he left her without having proved a cause for separation and without a judgment from the Church. The Council of Carthage, at which Augustine was present, legislated on this:

C. 1.

No one may lawfully send away his wife, unless he first proves cause for separation to the Church.

There are men in the world, who are putting aside, and have put aside, their conjugal unions for no serious fault, nor have they set out probable cause for the separation. Rather, putting aside their marriages, they attempt things both unlawful and alien.

Let them be excluded from the Communion of the Church and the holy company of the people. For they have stained the fidelity of marriage by ejecting their wives, without stating cause for separation before the bishops of the province, and before receiving a judgment condemning their wives.

Also, Ambrose, on Luke [16:[18]]:

C. 2.

The divine law prohibits a man from sending his wife away, except on account of fornication.

Is something that is wrong for a subordinate right for an equal? You send away your wife, as if by right, without any accusation. Do you think you can lawfully do this because no human law prohibits it? The divine law prohibits it! You who serve men, fear God also. Hear the law of the Lord. One must obey his law, which says [cf. Mt. 19:6], ``What God has joined together, let not man put asunder.''

Also, Pope Nicholas to the Emperor Charles:

C. 3.

If a husband sends his wife away without having the case heard, she is to be restored to everything.

The Ecclesiastical History [IV, xvii], written by Eusebius, bishop of Caesarea, says of a certain woman, whose husband accused her of unchastity, ``A law promulgated by the emperor commanded that she be freely permitted, first, to set her family in order, and, then, to reply to the accusations against her. Both ecclesiastical law and public common law command this.''

§1. If this legislation applies to women and men in the world, it applies even more to churchmen, such as priests.



Part 2.

Also, Pope Nicholas, [in a letter to King Charles]:

C. 4.

A case between a husband and wife concerning the bond of marriage or the crime of adultery may not be heard without first restoring matters to their previous state.

When the case concerning the conjugal bond or the crime of adultery is to be heard, fairness does not permit Theberga and Lothar to join issue until she has received independence to act and been allowed free contact with her own blood relatives.

A place should be provided for them, where there will be no risk of pressure from the crowd, and where they can easily produce the witnesses and other persons whom the holy canons and the venerable Roman laws require in controversies of this kind.

Part 3.

Gratian: Although this capitulum gives a reason why it is unlawful to send a wife away by one's own authority, it seems that the prohibition ceases when the reason ceases.

But, separation is a punishment, and only a judge can inflict a punishment. Thus, as a general rule, no one may lawfully send his wife away on his own authority, for any reason, stated or unstated. The same rule holds for capital punishment or any other punishment.

Hence Pope Nicholas writes to Rudolph, archbishop of Bourges:

C. 5.

Those who kill their wives are absolutely

forbidden to remarry.

As to those who killed their wives without trial, since you do not add that these were adulteresses or anything like that, should they be accounted other than murderers subject to penance? They are absolutely forbidden to remarry, unless they are young men. In which case, the rule of Pope St. Leo in Decretal xxv, 4 [C. 33 q. 2 c. 14], is to be applied with mercy.



Gratian: Nicholas appears in this capitulum to permit the killing of wives on account of adultery or similar crimes.

But ecclesiastical discipline commands that criminals be slain, not by a material sword, but by the sword with which Peter was ordered to kill and eat [Acts 10:13], this is the sword Christ speaks of in the Gospel [cf. Mt. 10:34], saying, ``I have not come to bring peace upon the earth, but a sword.''

Hence the same Nicholas writes to Bishop Albinus:

C. 6.

No one may lawfully kill his wife as an adulteress. Among other things, Your Holiness has asked whether, following the law of the world, a husband may lawfully kill his wife if she has committed adultery. But God's Holy Church is subject to no worldly law. It has no sword except the spiritual one; it does not kill, but gives life.

Also, Pope Pius:

C. 7.

The penance for one who kills his wife without cause.

Whoever kills his wife without right, cause, or certain proof, and takes another, must put aside his arms and do public penance. If he is contumacious and disobedient toward his bishop, let him be anathematized until he complies. The same law governs one who kills a priest.

Also, Stephen V to Astulph:

C. 8.

Astulph's penance for killing his wife.

We would admonish you, with tears and great heaviness of heart, son Astulph, although we should not call you our son. For sadly you have perpetrated a cruel homicide. You have killed your wife, a part of your own body, one bound to you in lawful matrimony. This was without cause, as she was not opposing you or hatching plots against your life. Nor did you find her engaged in any evil act with another man. Rather, incited by the Devil, burning with impious rage, like a robber, crueler than a beast, you ran her through in a ghastly fashion with your own sword. Then, after killing her, you piled crime upon crime, becoming a robber of your own children. Not only did you fail to spare their mother, you made them orphans.

Now, after she is dead, you want to lay the blame for her death on her, showing yourself at once a murderer and a false witness. Neither the Gospel, or any other divine or human ordinance, will condemn or acquit someone without suitable testimony from more than one person. Now much less could she then have been charged with a shameful public crime while alive, than she can now by you after her death? The motive for a crime should have been carefully sought out, and then, if it had been discovered, you would have had to seek imposition of punishment through legal channels. If there had been any truth (God forbid) in this lie about adultery, then, after seven years penance, you could have sent her away for demonstrated cause, if you had so wanted. But, even then, you would have had no right to kill her.

Yet God does not seek the death of the sinner, but that the sinner turn back through penance and live [cf. Ez. 33:11]. Therefore may you accept our counsel and select whichever course seems better and lighter to you. Have mercy on your soul, lest you become responsible for your own death. So, abandon this evil world, which lead you to such an inhuman and criminal sin. Enter a monastery and humble yourself under the abbot's hand. Assisted by the prayers of many brothers, perform with thankful spirit everything imposed upon you. Perhaps God in his infinite mercy will overlook your sins and heal your soul, before you descend into the eternal flames. You shall see that this is certainly the lighter and easier choice.

If, however, you decide to remain at home in the world to do public penance (which you cannot doubt will be more onerous, difficult, and severe), you will do as follows. For every day of your penance, you will, as we exhort you, not drink any wine or strong drink. You will not eat meat at any time, with the exceptions of Christmas and Easter. You will do penance on bread, water, and salt. You will persevere in fasting, vigils, prayers, and almsgiving perpetually. You will never take up arms or fight anywhere. You may not take a wife, nor a concubine, nor dare to commit adultery. You are never to bathe, nor are you to be present at any joyful celebrations.

In church, you will be segregated from other Christians, and you will position yourself outside the door and vestibule. There you will present yourself and implore the prayers of all those entering and leaving. You are to consider yourself unworthy to receive the Lord's Body and Blood for the rest of your life. On the last day, as you lie dying, if you merit it, we mercifully concede that you receive it as a Last Sacrament, if there is someone there to grant it to you. Many other things, suitably difficult and severe, will be added, in accord with the great gravity of your sin.

Then, if you undertake and complete, with a pure heart and God's help, all that we have mercifully laid out for you, we can rely on God's great clemency to grant you remission of your sins. So, in accord with the words of the righteous good Shepherd [Jn. 20:23], when the Holy Church absolves you from the bond of sin on earth, through the grace of him who purchased you by his blood, you will be forgiven in heaven. If you do otherwise, and despise the saving admonitions of Holy Church, you will be your own judge and be bound in the Devil's snare. Your blood will be upon your own head.

We, separated from your company, shall exert ourselves with all solicitude, though God's assistance, and persistently implore God's mercy daily for you and the salvation of all God's children.

Augustine, in On Adulterous Marriages, [II, xv]:

C. 9.

It is better to take another woman while one's wife is alive than to shed human blood.

If, as it is truly said, a Christian may not lawfully kill his adulterous spouse, but only send her away, who is so mad as to say to him, ``Do what is not lawful, that something unlawful may be lawful for you.'' According to Christ's law it is unlawful either to kill an adulteress or to take another while she is alive. One may do neither, and one unlawful thing may not be done in place of another unlawful thing [cf. D. 13 c. 3]. If he refuses to do what is lawful, then let him commit adultery rather than murder [cf. D. 13 c. 2]. Let him take another woman while his wife is alive, rather than shed human blood.

Part 4.

Gratian: The foregoing authorities forbid killing adulterous wives, but permit sending them away after seven years of penance. Those who kill them lose all hope of remarriage, unless mercy is granted them to contract marriage on account of their falling into youthful incontinence.

If wives of clerics sin, the clerics may keep them in custody, without the infliction of death. They are to have them fast, but not with such severity as to harm them.

Hence the First Council of Toledo, [c. 7], reads:

C. 10.

If wives of clerics sin, let them keep them at home and compel them to a salutary fast for their sin.

It pleased us that, if the wife of any cleric sins, lest she have liberty to sin further, her husband have power to confine her for her crime, and to secure her at home. He should compel her to a salutary, but not life-threatening, fast.

Poor clerics should give each other assistance in this if they do not have a serving girl. They are not to eat with wives who have sinned, lest they stop doing penance in fear of God.

Part 5.

Gratian: So, why do the canons provide that one should be restored to one's former state after doing seven years penance?

On this, Isidore writes to Bishop Maso, [in the Preface of On the Supreme Good]:

C. 11.

Why one is restored to one's former state after penance.

Canonical discipline determines that, after seven years as a penitent, one is restored to one's former state. The Holy Fathers did not decide this by their own choice, rather it was decided by divine decree. One reads that the prophetess Miriam, the sister of Aaron, was smitten with the taint of leprosy after committing the wrong of attacking Moses [Num. 12:1-11]. When she asked Moses for healing, he ordered her to remain outside the camp for seven days and to reenter the camp after her healing.

Miriam, the sister of Aaron, symbolizes a priest's flesh when, on account of pride, he is tainted by impure thoughts. Remaining outside the camp, symbolizes that he is cast outside the Holy Church's assembly for seven years. Then, after the healing of his vices, he may be restored to the rank of his former office or dignity.

§1. After a little: At the end of the letter, I think it should be added that, when there are contradictory decisions in the acts of the councils, that of greater or more ancient authority should be obeyed.

Gratian: This deals specifically with priests, but it should also be understood generally of all doing penance. They are like David, on whom, when he was guilty of adultery and murder, God imposed a fast of one week in expiation of his sins [2 Sam. 12:16-18].

It has been received as ecclesiastical custom that the penance for major crimes lasts seven years, unless the responsibilities of office or the magnitude of the crime demands the period be extended and exceed common custom. (For example, in the case of intercourse with one's parents, children, or other relatives, contrary to the nature of human society; or, in the case of fornication that includes sodomy or bestiality.)

Part 6.

§1. On the question of penance, can marriage be permitted to those who have completed a protracted penance? As a general rule, canonical authority prohibits penitents from serving as secular soldiers(26) and from contracting marriage.

Hence Pope Siricius, [in Letter i, to Bishop Himerius]:

C. 12.

Penitents are forbidden to contract marriage.

It is not unfitting that Your Charity decided to consult the Apostolic See on these matters. Some do penance, but then, like a dog or pig, return to their filthy vomit [cf. 2 Pet. 2:22]. These gird themselves as soldiers, engage in unclean pleasures, and again seek out forbidden intercourse in new marriages. They throw over their professed chastity and, after absolution, sire children. Because these cannot be given the privilege of doing penance again, we have been led to the conclusion that they must be barred from the celebration of the Sunday Eucharist, should they join the faithful in church for prayers or be present (albeit unworthy) at the sacred functions of the clergy.

They are to be corrected by this restriction, so that they learn to repent of their error and become an example for others to refrain from obscene desires. Nevertheless, we wish that those who have fallen because of the weakness of the flesh, be sustained with the grace of Communion in the Last Sacraments if they have begun to grow in the Lord. We have decided that you should also observe this for women who have fallen into pollution after penance.

Gratian: But, because of the risk of dissolving their marriages, some cannot be allowed to do penance. When there is a danger of a youthful lapse, or they have neglected to receive the help of penance, canonical authority allows them to keep the marriages they have contracted, or even to contract others.

Hence Pope Leo writes to Galerius, bishop of Tripoli:

C. 13.

As a lawful indulgence, matrimony is not forbidden

after penance.

We have heard from certain individuals that, in your diocese and on the outskirts of the Christian world, some throw off the yoke of penance on the slightest pretext. They say they would have to abandon their marriage bonds if they did penance.

In this they err and stray from the path of truth, because everyone who venerates the name of Christ must accept and do penance for all unlawful acts. The Lord says [cf. Mt. 3:2], ``Do penance, for the kingdom of God is at hand.'' Undergoing penance does not give any of the Orthodox the right to dissolve a lawful marriage.

§1. And below: You should employ sacred sermons to free these people from the darkness of error, and insure that they do penance for all unlawful acts, while keeping their lawful unions.

Also, Leo IV:

C. 14.(27)

Penitents who fall into youthful incontinence should

not be denied marriage.

When a youth, who has done penance because of risk or fear of death, or because of danger of captivity, decides afterwards, for fear of youthful incontinence, to take a wife, lest he commit the sin of fornication, this seems to be pardonable if he has relations with none but his wife. We do not establish this as a rule, but we do think it can be tolerated.




Part 7.

Also, Pope Nicholas to Rathold, bishop of Strasbourg:

C. 15.

The penance imposed on one who killed his mother.

We identify the bearer of this letter as guilty of matricide. We have ordered him not to enter a church for one year, while he is under the yoke of penance. He is to stand outside the basilicas, praying and beseeching God to free him from his sin. When the year is over, he has permission to enter the church, but he must stand among the hearers and not receive Communion. When three years are over, we concede him the grace of Holy Communion, but he may not present the offerings until seven years is completed.

§1. At no time during this period may he eat meat or drink wine, except on Sundays, feast days, and from Easter to Pentecost. Whenever he travels, he must do so on foot, not in a carriage. He is not to carry arms, except against pagans. Let him fast three days a week until evening. He may not to be separated from his lawful wife, lest he fall into the abyss of fornication, something we forbid.

If, however, during the first three years, the end of his life should draw near, let him receive Our Lord Jesus Christ's Body and Blood if he has been complying with our instructions. If you see his behavior and tearful sorrow producing fruitful acts and good works, let careful solicitude be generously granted him, as it should be shown to all the humble.



Part 8.

Also:

C. 16.

Youths are allowed licit marriage after lawful penance.

If anyone fornicates with two sisters, he is permitted to take a wife in lawful marriage. But he may take neither of these women, because that is forbidden by Sacred Scripture [Ex. 18:18]. And he may marry only if he does worthy penance and cannot maintain chaste continence. The same is observed for a woman who has fallen into a like crime, so that she not be led into the dissipation of fornication. But we have established this only for lay men and women.

The same:

C. 17.

Let one be punished who commits these crimes, but he may not dismiss his lawful wife.

If anyone fornicates with his spiritual mother, he is smitten (as you know) by the force of anathema. Likewise, we provide the same punishment for anyone who commits the crime of fornication with the one who received him from the Sacred Font at Baptism, or with the one who held him when he was presented to the bishop for the anointing with Holy Chrism. But he may not dismiss his lawful wife if he has one.

Part 9.

Gratian: §1. Those whom God the Judge has joined, no authority can separate.

Nevertheless, Isidore understands this differently when he says:

C. 18.

Man does not separate those condemned to punishment.

``What God has joined together, let not man but asunder.'' [Mt. 19:6] Do you ask the reason? You should understand that what God has joined man may not separate violently, lawlessly, or without reason. For it is not man that separates those condemned to punishment when they are charged as guilty of perpetrating some evil.

Gratian: This passage, however, should be understood to apply to those whom secular judges condemn for their crimes and order executed or deported, in accord with the rigor of the law.

Part 10.

Also, from the Sixth Council of Toledo, [c. 8]:

C. 19.

The same.

There is an ancient and very sacred decision of our father, Pope Leo [C. 33 q. 2 c. 14], concerning one of youthful age, who was incontinent in marriage, and entered the remedy of penance because he was in danger of death. Afterwards, lest he lapse into adultery, he allowed him to return to his former marriage, until he could take up the state of continence at a more mature age. We establish the same rule for women as well as men.

This is not meant as a general or canonical rule, but we decided that this should be allowed on account of human weakness. It is also reasonable, because the partner not subjected to penance cannot lawfully take another spouse before the other partner dies, even though that partner must practice continence. If, however, that spouse dies, let the survivor, who did not receive penitential absolution, marry and enjoy the embraces of another spouse if he cannot remain continent.

We are certain that what has been decreed should apply equally to both sexes. In all such matters, one should seek a decision from the priest, who will impose a discipline of penitential absolution suitable to the individual's age.(28)



QUESTION IV

Part 1.

That spouses may not lawfully render each other the debt during times of prayer, St. Jerome writes in a certain sermon, saying:

C. 1.

A man should abstain from the Flesh of the Lamb when he renders the debt to his wife.

You know, most dear brothers, that one who renders the debt to his wife cannot devote himself to prayer, nor can he eat the Flesh of the Lamb.

§1. Also: If those who touched women could not eat the Showbread [1 Sam. 21:4], how much more should those who have not refrained from matrimonial embrace refrain from touching and violating the Bread Come Down from Heaven? Now, we do not condemn marriage, but when we are to eat the Flesh of the Lamb, we ought to forego carnal works.



Also, Augustine, [in Sermon ii of the Temporal Cycle, that is, for the Second Sunday of Advent]:

C. 2.

One should abstain from conjugal union on the

solemnities of the saints.

On Christmas and other festivals we ought to abstain, not only from the company of unbelieving concubines, but also from our own wives.



Also, Ambrose, in his sermon on the Lord's Coming:

C. 3.

On fast days one ought also to abstain from one's wife.

Brethren, you should abstain, not only from every impurity, but you should also carefully hold yourself back from your own wives. Let no one have relations with his wife.

The same, on the First Letter to the Corinthians [7]:

C. 4.

If a wife is taken for procreating children, not much attention needs to be dedicated to that. What is necessary for conception and childbirth shows that one can abstain from works of the flesh on feast days and rogation days, as the law demands at those times.

Also, Augustine, in his book Questions on the Old and New Testaments, [Question cxxvii], says:

C. 5.

One must refrain from one's wife on certain days.

Sometimes a Christian may lawfully approach his wife, at other times he may not. On the rogation days and fast days, one may not lawfully approach her, because one should then abstain even from lawful things, in order to entreat and pray more easily.

Hence the Apostle [1 Cor. 7:5] says that spouses should abstain for a time by mutual consent, to devote time to prayer. For according to the law [cf. Is. 58:4], one may not sue and fight during fasts, although one might afterwards.

Also, John Chrysostom:

C. 6.

Without continence, one does not truly do penance.

One who claims to do penance and master himself by self-denial speaks in vain if he does not abandon the bed-chamber [cf. Joel 2:16] and add continence to his fasting.





Part 2.

Also, Gregory, [to the Questions of Augustine, Reply 10]:

C. 7.

A man should refrain from entering a church after sleeping with his wife.

After sleeping with his wife, a man should not enter a church, unless he is washed with water.

§1. Although different peoples have different ideas on this, some appear to have followed the Roman usage from ancient times. They, after relations with their wives, wash in purification and refrain a while from entering the church.

We do not suggest that marriage is wrong, but because lawful conjugal relations cannot occur without lust, one should abstain from entering a sacred place, because lust cannot occur without fault. For it refers not to fornication or adultery, but to lawful marriage, when it says [Ps. 51 (50):7], ``For behold I was conceived in iniquities.''

§2. Lawful union of the flesh must be for the sake of offspring, not for lust, and fleshly intercourse for having children, not for satisfying vice. If anyone has taken a wife, not out of desire and lust, but only for having children, we leave it up to him to decide whether to enter the church and receive the Sacrament of the Lord's Body and Blood.

We would not refuse to accept one who had passed through the flames but was not burned. But since, in the act of union, men are dominated, not by desire to procreate offspring, but by lust, spouses do have something to regret in their union.

§3. So a man who has washed with water after conjugal union can receive Holy Communion when he is free to enter a church, in accord with the established ruling of that church.

Part 3.

Gratian: The following forbid the celebration of marriage on days of abstinence.

Hence in the Council of Laodicea, [c. 52]:

C. 8.

Marriage may not be celebrated during Lent.

Marriages or feasts may not be celebrated during lent.



Also, from the Council of Pope Martin, [c. 48]:

C. 9.

The same.

The feasts of the martyrs may not be celebrated during Lent, but the offering may be made in their memory on Saturdays and Sundays. Neither feasts nor weddings may be celebrated during Lent.



Also, from the Council of Lerida:

C. 10.

The same.

Weddings may not be celebrated from Septuagesima(29) until the Octave of Easter, during the three weeks before the feast of St. John, and from Advent until Epiphany. If any do so, let them be separated.

Also, Nicholas, to the questions of the Bulgarians:

C. 11.

The same.

I think it no way possible to take a wife or have any celebrations during the season of Lent.




Part 4.







Gratian: This is the rule if the wife gives consent. For one may not practice continence for the sake of prayer without his wife's consent.

Hence Augustine, in On Adulterous Marriages, [I, ii]:

C. 12.

Spouses cannot withhold themselves from each other for the sake of prayer without mutual consent.

The Apostle did not want spouses to withhold the carnal debt from each other to spend time in prayer, except by mutual consent.

Hence in the Second Council of Arles, [c. 22], it reads:

C. 13.

Penance should not be imposed on married persons without mutual consent.

We command that penance not be imposed on married persons without mutual consent.



QUESTION V

Part 1.

Gratian: Many authorities prove that a man cannot vow continence without his wife's consent. Augustine, on Psalm 146,(30) says:

C. 1.

A man may not observe continence unless his wife assents.

Although a man says, ``I wish to be continent, I do not want a wife,'' he may not do so. You would then want what she did not. Shall she, on account of your continence, become a fornicator? If she marries another while you were alive, she is an adulteress. Would God not reward such a price with your own damnation?

Render the debt, render it even when that is not your preference. God will count it as perfecting sanctification, that, although you do not ask it of her, you render it to your wife when she asks.

Also, Alexander II, to Landulph in Corsica:

C. 2.

A man may not force his wife to consent to his

vow of continence.

You have informed us that you were weak unto death, gripped with fearful terror at the memory of your sins, and anxiously desired to become a monk. So, by threatening to kill her, you extorted permission for this from your wife. You then took the monastic habit, without being accepted by an abbot or finding a monastery.

Afterwards, when you regained your health, you returned home and were moved to repentance by the entreaties, cries, and tears of your wife and dispersed family. Then, after a number of days, through the counsel of wise men, you returned to your said wife's bedroom. Now you have asked our counsel on whether you can know your wife.

If matters stand as your messenger says, your actions were entirely unjust. A man's entrance into monastic life must be conduced in a legal, holy, and just manner. You sought to enter a monastery, partly because of fear of death, and partly because you were worn out by the sufferings of illness. You did this contrary to law, threatening your wife with violence. Following this aberrant course, you received no permission to leave her. No one may rush into a monastery or profess continence without getting his wife's permission, not by violence, but by her perfect free will (as the Fathers dictate).

Also, from the Council of Compiègne:

C. 3.

A husband need not recognize a vow of continence that his wife has made without his consent.

A woman, if she places the veil on her head without her husband's permission, must return to her marriage if her husband desires this.

Also, Augustine to Edith, [in Letter cxcix]:

C. 4

A man cannot rescind the vow of continence his wife has promised with his consent.

What you have vowed with mutual consent, you should both persevere in to the end. Although he has lapsed from this dedication, persevere constantly yourself. I am exhorting you to nothing, save what he agreed that you should do. If you did not have his consent, even the passage of many years would not have sanctioned it.

§1. And after a little: After you mutually withdrew from carnal union because your husband desired this, you had each other in marriage in an even more holy way, for you harmoniously observed something more pleasing in holiness. You ought to have done nothing with your clothing, gold, silver, or any of your money and earthly goods, without his agreement.

§2. And below: There is a dress proper to a matron, which is different in form from the clothing of a virgin, and which resembles that of the married faithful with respect to its religious purpose and appearance. If your husband forbad you to abandon this, lest you present yourself as a widow while he was alive, reflect whether it was more wrongful disobedience or rightful abstinence that led to scandalous dissension in this matter.

It is absurd for a woman to be proud of humble attire. Would it not be more becoming to discipline oneself in spotless morals than to rebel in back robes? Although you delight in a nun's habit, it would have been preferable to assume it after consulting and asking your husband, rather than presuming upon him without consultation and respect. If he had forbidden it, what ruin would have befallen your dedication? Let us hope you have not so displeased God that, when you put those cloths on after your husband's death, you will do so like Anna [Lk. 2:26-28], rather than Susanna [Dan. 13:32].

The same:

C. 5.

He has the merits of continence, who must render the debt to his wife because of her incontinence.

In accord with the apostolic message, if your husband wished to practice continence and you refused, he would be compelled to render the debt to you, yet God would count it to him as continence. For he would not be yielding to his weakness, but to yours, lest you fall into adultery.

§1. So, one who renders the debt out of consideration for his wife's weakness does not demand it. If he took a wife on account of his own weakness, he should lament that he could live without a wife, rather than rejoice that he took her.

One man sells something he knows, because, while it lasts, it does not make him happy. Another knows that what he buys is transient, and thus does not depend on it, but uses it to gain mercy, so that, with those who do not have it, he can look forward securely to the Last Day.

The same, to Armentarius and Paulina, [in Letter xlv]:

C. 6.

Vows of continence cannot be made without

the wife's consent.

Only one reason would make us forbid you from doing what you desire and we have encouraged you to do. That would be if your husband refused to allow it, on account of his weakness of mind or body. Married people cannot make this vow except by common consent and agreement. If it has been vowed rashly, one should more rebuke the audacity than obey the promise. Nor does God require what one has vowed at the expense of the other, rather he forbids holding oneself back from the other [1 Cor. 7:3-4].





Part 2.

Also, Jerome, [in Against Jovinian, I]:

C. 7.

Without other actions, virginity alone cannot save, but neither are other deeds perfect without virginity.

So, a woman will be saved if she bears children who will remain as virgins [cf. 1 Tim. 2:15]. What she has lost she regains in her children. She makes up for a ruined and dry root by her flower and fruit.

The same:

[C. 8.]

Now I am only saying that, just as without other actions virginity alone does not save, so all other actions are imperfect without virginity, purity, continence, and chastity.

The same:

[C. 9.]

``If anyone thirst, let him come and drink.'' [Jn. 7:37] ``Let him accept it who can.'' [Mt. 19:12] He did not say that we should all run and drink without distinction. Rather, the one who wants, the one who can run and drink; that one will win, that one will be satisfied. So Christ has greater love for virgins because they have spontaneously offered what was not commanded of them, and it is a greater grace to offer without compulsion, than to render what is required.

The Apostles, when they considered the requirements of a wife, said [cf. Mt. 19:10], ``If the case of a man with his wife is so, it is not expedient to marry.'' The Lord approved their opinion, saying that it was better that one bound for the Kingdom of Heaven not take a wife. But this is a difficult thing, and not all can accept this advice, but only those to whom it is given. Some men are made eunuchs by nature, others by human force. The eunuchs who please me are not made by necessity, but by free will. [Cf. Mt. 19:11-12.]

I freely take whose who have made themselves eunuchs for the Kingdom of God into my bosom. For, because they worship me, they do not want to be as they were born. We treat similarly the passage where he says [cf. Mt. 19:12], ``There are eunuchs who have made themselves so for the sake of the Kingdom of God.'' If the cost of the Kingdom of Heaven is making oneself a eunuch, then the one who does not make himself a eunuch has no place with those who have made themselves eunuchs.

Gratian: This authority and the two preceding it refer to the practice of virginity, whether voluntary or obligatory. Cause is deduced from effect. Chastity is not required before the vow, rather it is voluntary; and one is not obliged to observe it, until it has been promised.

Part 3.

Also, from the Council of Rheims:

C. 10.

One who allows his wife to take the veil cannot take a wife.

He who has permitted his wife to take the veil may not take another, but must also practice continence.

Part 4.

Also, Augustine, in Questions on Numbers, [Question lix]:

C. 11.

A woman is not compelled to observe a vow of abstinence made with her husband's permission if he forbids it.

It is evident that the law requires a woman to submit to her husband [Num. 30:7-15]. She may not observe a vow of abstinence that she has made, unless her husband concurs by permitting it. It would be a sin for him if he earlier permitted it and then later forbad it.

Nevertheless, I do not say that a woman must do what she vowed because her husband earlier permitted it. I said it would be a sin for him to prevent what he had earlier conceded. Her husband did not impose a command on the woman such that she would be condemned if he later prevented what he previously permitted.



Gratian: The preceding plainly show that neither a wife without the consent of her husband, nor a husband without the consent of his wife, may vow continence to God. If either promises it with the other's consent, and then one wants to violate what the other has promised, then the wife has no power to demand the conjugal debt from her husband, nor may the husband demand it from his wife.

So, if either of them gives up their right over the other, that one may not later force the other to submit once again. In all other matters, however, the husband is the head of the wife, and the wife is the body of her husband [Eph. 5:23; 1 Cor. 11:3]. But, just as a woman cannot make a vow of abstinence without her husband's permission, so she cannot fulfil that vow if he prohibited it. This is because of her subordinate condition, in which she obeys her husband in all things [Eph. 5:24].

Hence Augustine, in the book Questions on Genesis, [Question cliii], says:

C. 12.

Wives are to obey their husbands.

There is a natural order in human affairs such that wives obey their husbands, and children their parents [Col. 3:18, 20], because it is just that the lesser serve the greater.



The same, in the [combined] Questions on the Old and New Testaments, [cvi]:

C. 13.

The husband is head of the wife.

The image of God in man is such that, when he, from whom all others would have their origin, was made, he possessed God's dominion as his vicar [Gen. 1:26]. This is because he had the image of God. But the woman was not said to be made in God's image [cf. Gen. 1:22-23]. So it says [cf. Gen. 1:27], ``God created man; to the image of God he created him.'' And the Apostle said on this [1 Cor. 11:7], ``A man indeed ought not to cover his head, because he is the image and glory of God.'' Then when the woman should veil her head, this is because she is not the glory and image of God [cf. 1 Cor. 11:7].



Also, on the same:

[C. 14]

The law clearly demands that women submit to their husbands and serve them [Col. 3:18; Eph. 5:22]. So, it was established that, when a husband gave testimony against his wife, she was to be stoned if it was true [Deut 22:13-15, 20-21]. He himself was not to be stoned if it was false, but he would be condemned and punished, and he was ordered to keep forever the one he wished to be quit of [Deut. 22:18-19].

In other matters, when one was proved to have tried to harm another by false testimony, he was ordered to be killed. Indeed, he was to suffer the same penalty that would have been inflicted on the other if the charge had been true [Deut. 19:18-19].



Also, Jerome, on the letter to Titus [2]:

C. 15.

The same.

Since the head of a woman is her husband, and the head of the man is Christ [Eph. 5:22], any woman who is not subject to her head is guilty of the same crime as the man who is not subject to his head. It is blasphemy against the Word of God, scorns and ignores God's first decree [Gen. 3:16], and brings the Gospel into disrepute, when a Christian woman, contrary to the Faith and the law of nature, wishes to give orders to the man to whom she is lawfully subject. Even the pagans' wives serve their husbands according to the common law of nature.



Also, Augustine, in Questions on Numbers, [Question lix]:

C. 16.

A wife should follow the will of her husband in everything.

So the law forbids vowing anything inimical to one's soul to God. Thus [Num. 30:7-15], not the woman's authority, but the man's, prevails in vows of abstinence from permitted and conceded things. Thus [Num. 30:4-6], as a father can allow an unwed daughter to obey her vows, and, before she has vowed, to marry, so when she does not obey a vow that displeases her husband, this is wholly without sin. God has purified her [Num. 30:16]. And, as he has declared her pure, she does not act against God in doing this, since God both commands and wills it.

Also, Ambrose, in the book Questions on the Old Testament, [Question xlv]:

C. 17.

A wife has no power of her own, but is to submit to her husband's dominion in everything.

It is fitting that a woman be subject to her husband's dominion and have no independent authority [cf. Col. 3:18]. She is not to teach him, testify against him, bind him, or judge him [cf. 1 Cor. 14:34-35].

The same, in On the Hexameron, Treatise on the Fourth Day:

[C. 18.]

Adam was deceived by Eve [cf. Gen. 3:6], not Eve by Adam. It is just that, as the woman was at fault, she be subjected to his governance [Gen. 3:16], lest he fall again through her heedlessness.

The same, on the First Letter to the Corinthians [2]:

[C. 19.]

The woman ought to veil her head [1 Cor. 11:7-10], since she is not the image of God. Rather she should wear this as a symbol of her subjection, because the Fall began with her.

Out of respect for the bishop, let her not have her head uncovered in church, but covered by a veil [1 Cor. 11:5]. Let her have no power to speak, because the bishop represents the person of Christ [1 Cor. 14:34]. As she would be before Christ the Judge, so let her be before the bishop, because he is the Lord's vicar. Let her be subject, on account of original sin.

Part 5.

The same, in the book On Paradise, [x]:

[C. 20.]

It is not without significance that the woman was not made from the same earth as Adam, but rather from Adam's own rib [Gen. 2:22]. This shows us that there is but one nature, one font, of the human race, in both man and woman.

Man and woman were not made from two principles, nor were there two men, or two woman. Rather, there was first the man, and then the woman from him. God decided to create a single human nature from the very beginning of creation. Thus he removed any possibility that we might posit several diverse natures.

Gratian: The husband, then, is clearly the head of the wife. So, she can make no vow of abstinence or religious conversion to God unless her husband consents to what she promises. Nor may she observe a vow if her husband forbids it.

Thus, without the other's consent, neither can make a vow of continence that cannot be repudiated afterwards.




CASE THIRTY-FOUR



Gratian: A man was taken into captivity. His wife, hearing he was dead, married another. He then returned from captivity and sought his wife back. Taken with love for the second man, she spurned the bed of the first. It is now asked:

First, is she guilty of adultery because she married another while her husband was alive?

Second, should she be compelled to leave the second man and return to the first?



QUESTIONS I AND II

Part 1.

Gratian: The authority of Pope Leo decides both questions, when he writes to Nicetas, bishop of Aquileia, [in Letter lxxvii, 1-2]:

C. 1.

Whoever marries another, thinking her husband is dead, should be compelled to return to the first when he returns.

As you have said, the slaughter of war and the intense onslaught of the enemy have broken up certain marriages and led the husbands off into captivity. Their wives were left destitute and believed that their husbands had died or would never be freed from unjust imprisonment. So, force of circumstance compelled them to enter marriages with others. But later, by God's assistance, conditions improved, and some, who were thought to have perished, returned.

Your Charity rightly hesitates over what to do with the women who joined other husbands. We know that it is written [cf. Prov. 9:14] that a wife is joined to her husband by the Lord. We also know it is a precept that what the Lord has joined, man may not separate [Mt. 19:6]. Hence, we believe the bonds of these lawful marriages must be restored. After whose captured by the enemy are reunited, we must take zealous care to restore to each one whatever he has a lawful title to [cf. D. 1 c. 9], so that he receive back everything that was his.

§1. But those who took the role of husbands to women who thought their husbands were no longer alive should not be judged as culpable or invaders of another's right. Many possessions of captives may pass into another's hands, but it is just to restore this property to them when they return.

As this is rightly observed for slaves, fields, homes, and possessions, how much more rightfully should marriages also be reestablished, so that, what the slaughter of war has disturbed, the harmony of peace might restore? So if a husband returns from long captivity and still loves his wife enough to return to their marriage, one must overlook what necessity brought about. It should be judged without fault, and what fidelity demands is to be restored.

§2. And below, [4]: But, if some women love their second husbands so much that they insist on staying with them, instead of returning to their lawful union, it is right to threaten them with deprivation of ecclesiastical Communion. For they are choosing, not something excusable, but further association in crime. In their incontinence, they now commit a crime what they could have rightly expiated by merely desisting.

So, let these marriages be restored voluntarily to their proper state. Nor let anyone hold malicious grudges against those who acted under compulsion from force of circumstance. For, as those who return to a relationship sanctioned by God are rightly praised, those who refuse to return to their husbands are judged impious.

Also, Pope Innocent to Probus, [in Letter ix]:

C. 2.

An earlier marriage is to be restored when a husband or wife returns from captivity.

When his wife Ursa was in captivity, we know that Fontanus entered a marriage with Restituta. By the favor of God, Ursa returned, came to us, and stated, without anyone dissenting, that she was the said man's wife.

Therefore, most beloved sons of illustrious merit, as the Catholic Faith agrees, declare for the marriage which was established earlier with divine grace. The liaison with the second woman, whatever its terms, is unlawful, as long as the first wife is alive and has not been ejected by divorce.

[Part 2.](31)

Also, Jerome to the priest Amand:

C. 3.

A woman who leaves her first husband and adheres to a second cannot be reconciled to the first without

leaving the second.

I do not fully understand what you mean when you say, ``Another husband accepted through force.'' The man gathered a band of men and abducted her against her will. Can a woman who has been abducted not send away her abductor afterwards? Let her read the books of Moses and she will find that [Deut. 22:23-24], if a man's betrothed is violated in the city, and she does not cry out, she will be punished as an adulteress. But if she was violated in the field [Deut. 22:25-27], she was without fault, and the violator is subject to the law.

Thus let his sister who, as you say, suffered violence in being joined to the adulterer, do penance if she wishes to receive the Body of Christ and not be accounted an adulteress. From the time of penance, any union she has with the second husband will not be a union with a husband, but with an adulterer.

If she thinks this harsh, and will not leave him because she now loves him and prefers her pleasure to the Lord, let her hear the Apostle's cry [1 Cor. 10:21], ``You cannot drink the cup of the Lord and the cup of devils; you cannot be partakers of the table of the Lord and of the table of devils.'' And in elsewhere [2 Cor. 6:14], ``What fellowship has light with darkness? What harmony is there between Christ and Belial?''

Now I shall say something new. Yet, in fact, it is not new, but old, for the authority of the Old Testament confirms it. If she leaves the second man, and wishes to reconcile to the first, she cannot do so. For it is written in Deuteronomy [cf. 24:1-4], ``If a man take a wife, and have her, and she find not find favor in his eyes for some uncleanness: he shall write a bill of divorce, and shall give it into her hand, and send her out of his house. When the adulteress has departed and marries another husband; and he also hates her, and has given her a bill of divorce, and has send her out of his house. Then, until the second is known to be dead, the former husband cannot take her again as wife; because she is defiled and is become abominable before the Lord; lest you cause your land to sin, which the Lord your God shall give you to possess.''



Part 3.

Gratian: If unavoidable necessity compels a man to flee to another province, and his wife cannot follow him, let her remain unmarried for as long as he lives.

Hence in the Council of Verberie:

C. 4.

She who refuses to follow her husband into captivity must remain unmarried as long as her husband lives.

If someone is compelled by unavoidable necessity to flee into another duchy or province, and his wife could follow him but, out of love of her parents or property, refuses, let her remain unmarried for as long as the husband whom she did not follow lives.



Part 4.

Gratian: What the authority from Pope Leo [C. 24 qq. 1 & 2 c. 1] says about married persons also applies to virgins. They are not bound if they marry another's husband without being aware of it.

Hence Augustine, in the book On Faith and Works, [vii]:

C. 5.

A virgin is not an adulteress who unknowingly marries another's husband.

If a virgin unknowingly marries another's husband and never discovers this, that will never make her an adulteress. If she finds out, she becomes one as soon as she sleeps with the other's husband knowingly. This is like the law concerning fields, where someone is rightfully called a possessor in good faith, as long as he is ignorant that he possesses something of another. But when he finds out and refuses to withdraw from the other's possessions, then he is in bad faith and rightly called unjust.

Part 5.

Gratian: Ignorance also excuses a man who unknowingly sleeps with his wife's sister.

Hence it reads in the Council of Trebur:

C. 6.

He who unknowingly slept with his wife's sister is not compelled to leave his lawful wife.

When his wife was absent, the wife's sister entered the husband's bed. He thought she was his wife and slept with her. It appears that, if he can prove by true sworn witness that he committed the crime unknowingly, he must do the penance imposed on him, but he may keep his lawful wife. The woman is to receive fitting punishment and be deprived of marriage forever.

[Hermas, in the book The Shepherd, Commandment Four:

[PALEA. C. 7.

[I said to the Shepherd: ``Lord, if one has a wife who is a believer in the Lord and he finds her in adultery, will the husband sin if he lies with her?'' And he said to me, ``As long as he does not know her sin, the husband lives with her without crime. But, if the husband knows his wife has fallen, and the woman does not do penance but persists in her fornication, the husband will be guilty of her sin and a participant in her adultery if he has intercourse with her.''

[I said to him, ``What if the woman persists in her vice?'' And he said [cf. Mt. 19:9], ``Let the husband send her away and let him remain by himself. If he sends the woman away and takes another, he will commit adultery himself.''

[I said to him, ``What if the woman who was sent away does penance and wants to return to her husband, is she to be received by her husband?'' And he said to me, ``Indeed, if her husband does not receive her, he sins and takes a great sin on himself. He ought to receive a sinner who has done penance. Therefore, when a wife has been sent away, the husband ought not to take another. This is the same for both husband and wife.'']

Part 6.

Gratian: The case is the same for those merely fornicating with two sisters, or with a mother and a daughter, or with a father and a son. If they did so unknowingly, marriage is not to be denied them. If they do so knowingly, it is perpetually prohibited.

Hence it says in the same council:

C. 8.

Those whose incest is excused by ignorance are not prohibited from contracting lawful marriage.

If anyone fornicated with two sisters, and one sister did not know that he had previously seduced her sister, or if he did not know that she was the sister of her whom he had previously seduced, let him do fitting penance. But if he is incontinent, marriage shall not be denied him after seven years. If they were not ignorant, they must refrain from marriage until death.

The same, from the same:

[C. 9.]

If someone fornicated with a mother and daughter, and the mother did not know about the daughter, or the daughter about the mother, he may never take a wife. But they, if they wish, may take husbands. If these women did this knowingly, they must remain perpetually without husbands.

The same, from the same:

[C. 10.]

A certain man fornicated with a woman, and afterwards, his son, not knowing what his father had done, also seduced her. When the father discovered this, he confessed as to himself and the son.

We decree that it is better to permit such fallen men to enter lawful marriages after fitting penance, lest they perhaps lapse into something worse. But the woman who committed fornication is deprived of hope of marriage.




CASE THIRTY-FIVE



Gratian: After his wife died, a man married a woman who was related to his dead wife within the fourth degree of consanguinity, and to him within the sixth degree. He had children by her but, after three years, he was accused before the Church. He asserted ignorance. Here it is asked:

First, can one lawfully take a wife from one's own blood relatives?

Second, can one take a wife's blood relative in marriage?

Third, to what degree should one abstain from one's blood relatives and the blood relatives of one's wife?

Fourth, does consanguinity extend to seven degrees, or to fewer, or to more?

Fifth, how does one compute the degrees of consanguinity?

Sixth, who can testify under oath concerning blood relationship?

Seventh, are the issue of incestuous unions to be called children?

Eighth, if one unknowingly takes a blood relative or affine as wife, can she be dispensed to remain with her husband?

Ninth, if the Church is deceived, and someone separates from her husband for consanguinity and forty days later celebrates another marriage, should the second marriage be rescinded and the first restored, assuming she was not consanguineous to her first husband?

Tenth, if someone's widow marries a second time outside her own blood relations, can the children of the second marriage marry her first husband's blood relatives?





QUESTION I

Gratian: Examples and authorities prove that we can lawfully take our own, or our wife's own, blood relatives in marriage. Abraham took Sarah, his brother's daughter and Lot's sister, as wife [Gen. 11:29]. Isaac took Rebekah, the daughter of his mother's cousin, as wife [Gen. 24:67]. Jacob took two sisters, Leah and Rachel, Laban's daughters, in marriage [Gen. 36:].

§1. Also, in the Law of Moses [Num. 36:6], the Lord commands that no one take a wife except from his own tribe and family. Also, the Lord [Deut. 25:5] commands that, if someone dies without children, his brother should join himself to the deceased's wife and raise up seed for his brother from her.

Moreover, we have received this law and are subject to its commands, unless the commands of the Gospel or apostolic provisions have abolished them. But no command of the Gospel or apostolic provision has prohibited unions with blood relatives. Hence, they are still lawful, as they were from the beginning.

§2. Reply to the forgoing: Unions with blood relatives were sometimes permitted because of necessity. Sometimes, they were ordered for some other just reason.

In the beginning, there was one man, and God formed a woman from his side [Gen. 2:22]. Sisters then married brothers out of necessity. But that was done under force of necessity, and when something is done only out of necessity, it should cease when there is no necessity.

Union with blood relatives is now to be condemned, because it is unnecessary. Hence we find that the Law later prohibited such a union, when the Lord said through Moses [Lev. 18:9], ``You shall not uncover the nakedness of your sister.''

Hence Augustine, in the book On the City of God, [XV, xvi]:

After the man made from dust united with the wife made from his side [Gen. 2:22], the human race needed intercourse between males and females to multiply through births. There were none except those born from those two, so men took their sisters as wives. But it is certain that religion later rendered condemnable by prohibition what was done under force of necessity in ancient times.

Charity certainly dictates that men, for whom harmony is useful and honorable, should be bound through the ties of their various needs. Thus, one should not have many wives at once, but each woman should unite with one man Thus women will bring men together by love, to the advantage of common life.

Father and father-in-law are names of two necessary functions. When one has as a different father and father-in-law, love embraces a greater number. Adam alone was forced to be both, because his sons and daughters, although they were brothers and sisters, joined in marriage. Thus, his wife Eve was both mother-in-law and mother for all her children. If there had been two women, and one could have been the mother and the other the mother-in-law, common love would have embraced a greater number.

§1. But this was impossible, because there was no one except the first couple's children, who were all brothers and sisters. But when there are many women other than sisters, who can be taken as wives, this should not be done because it is no longer necessary.

§2. As the human race multiplied, we see that, even among the impious and the worshippers of many false gods, when perverse laws permitted sibling marriages, better custom ignored this permission and shunned the practice as unlawful.

§3. Among human beings, the union of male and female fosters love. This is something the Heavenly City also needs, although it can escape the dangers of procreation.






Gratian: Thus, a practice that originated at the very beginning of human propagation excused Abraham, Isaac, Jacob, and others who married their own relatives, because no law commanding the contrary had abolished it.

There were also other good reasons to justify it. When everyone else was fouled by idolatry, Heber's family alone still worshiped the one God [cf. Gen. 11:14-16]. Hence the Chaldeans threw Abraham and his brother into the fire that he had refused to adore, so that by being burned he might experience the deity he had scorned to worship.(32)

To prevent believers from slipping into idolatry through unions with unbelievers, and thereby offending God as they had before the Flood [Gen. 6:4], when the Sons of God mixed with the Daughters of Men and provoked him to wrath, it was right that the holy patriarchs took wives only from their own relatives, that is, from the family of believers.

So too, the Lord told the sons of Israel, before entering the Promised Land, not to take the daughters of the Canaanites was wives, nor to give them their women in marriage [Deut. 7:3]. It was for this reason that Lord added the qualification [cf. Deut. 7:4], ``for she will turn away your son from following your God, that he may rather fornicate with strange gods.''

Hence Ezra [10:11] also ordered the dismissal of wives from the Idumeans and other nations, through whom the Sons of Israel had made alien gods.

§1. Unions with blood relatives were first permitted, or better commanded, among the People of God for another reason. From the beginning, God intended to bring salvation to the human race by founding the primitive Church among a people united by blood relationship. Hence he first chose the apostles, whom he set up as the foundation of the Church, from the Jewish people. They converted many of these to God by their preaching and were themselves the origin of the Church.

Then, when the Jewish people were abandoned in the blindness of their unbelief [cf. Rom. 7:10], the preaching of the Gospel passed to the Gentiles, who had been alien to Christ by both belief and blood. So, spurning union with his blood relatives, he chose a wife from another family, fulfilling the prophet's prediction [cf. Is. 50:1], ``For your wicked deeds I have put your mother away as an adulteress and as one repudiated,'' and again what was said through another prophet [cf. Hos. 2:23], ``I shall not say to my people, you are my people.''

As a sign of his, he first permitted people to have unions with blood relatives, but now this is prohibited. It is now permitted to take a wife, not from one's own blood family, but from any other, so that the believing people be found, not in one family alone, but in a whole multitude of races.

§2. Those precepts of the Law that have not been abolished by evangelical or apostolic provisions are certainly to be obeyed. But the Apostle [Rom. 8:2] proves that all signs are given only for a time, and should no longer be observed when the Truth has arrived. Thus, as has been shown above, God instituted this as a sign; thus it was clearly abolished along with the other symbolic precepts.

True, as the Apostle added as counsels certain things not commanded as precepts in the Gospel, so the Church has established other things not repudiated as rash or superfluous by the apostles. After the apostles' legislation, the Church later established, as counsels of perfection, the celibacy of the clergy, the rituals of the sacraments, and the ceremonies of worship. None of these can be repudiated, but all must be accepted with respectful veneration.

So, although evangelical and apostolic commandments do not forbid them, unions with blood relatives must still be avoided because they are interdicted by ecclesiastical legislation.




QUESTIONS II and III

Gratian: As the preceding proves that one must abstain from union with blood relatives, it remains to be seen to what degree one must abstain from marrying one's blood relatives; and whether one may lawfully take a relative of one's wife in marriage.

About this, Pope Gregory wrote as follows to the Council of Meaux:

C. 1.

No one may take a wife related to him within

the seventh degree.

It pleases us to consider those as affines through consanguinity who share some degree of relationship by descent up to seven generations. For the inheritance of property, enforced by the legal determinations on documents, allows succession as heirs up to the seventh degree. Nor is there any succession except through a relative's offspring.

Also, Pope Calixtus, [in Letter ii, to the bishops of Gaul]:

C. 2.

Those who take blood relatives as wives are

subject to degradation.

Unions of blood relatives are prohibited. Why? Because both the divine and secular laws prohibit them. Divine laws not only expel those doing this and those born from them, but even call them cursed [C. 27 q. 2 c. 12]. Secular laws [Instit. 1.10.12] declare them degraded and bar them from inheriting.

Following our fathers [C. 6 q. 1 c. 17], we also subject them to degradation and judge them degraded, because they are subject to the disabilities of degradation. For we should not entertain such men or their motions, when the secular laws refuse them.

§1. We consider those blood relatives whom the divine laws call blood relatives, and those who can succeed as heirs and are not barred from inheriting in the laws of the Roman and Greek emperors [cf. Cod. 5.5.6.3].

Also, Pope Fabian:

C. 3.

Those with affinity from five generations can be joined; if from four, they are not to be separated.

Those related by affinity through a husband or wife from five generations may be joined, when the wife or husband has died. If it is from four generations, let them not be separated.

But one may not lawfully take another wife who is related in the third degree, after a wife's death. A man may likewise not be joined in marriage to his own blood relatives, or to his wife's blood relatives, after his wife's death.(33)

The same:

[C. 4.]

One who takes a blood relative as wife and then separates, may not lawfully take another wife in marriage as long as both are alive, Gratian unless excused for doing so unknowingly.

Hence in the Council of Verberie:

C. 5.(34)

Those who unknowingly commit incest are not forbidden

to take wives.

If a man fornicated with a mother and daughter, and the mother was ignorant about the daughter, and the daughter about the mother, he can never take a wife. But the women, if they wish, may take husbands. If the women knew about each other, let them remain perpetually without husbands.

The same, from the same:

[C. 6.]

If a man fornicated with a woman, and his brother unknowingly took this woman as wife, the first brother should do penance for concealing the crime from his brother, but after penance he may marry. But the woman must do penance until death and be deprived of hope of marriage.

Gratian: Other authorities must be examined concerning those who marry unknowingly.

Hence Pope Julius:

C. 7.

No one may take a wife related by blood to him or his wife within seven degrees.

We permit neither sex to marry their own or their spouse's blood relatives within seven degrees of descent, or to be joined with the stain of incest. We further add that, as it is not lawful [cf. C. 27 q. 2 c. 12] for any Christian to marry a blood relation, it is also unlawful to marry any of one's wife's blood relations, because of they have become one flesh.

Also, from the Council of Agde, [c. 61]:

C. 8.(35)

The incestuous are unworthy of the name of spouse.

We hold out no pardon to those in incestuous unions, unless this is remedied by the adulterers' separation. The incestuous may not be called by the name of spouse, for it would be despicable to describe them as such.

§1. This decision applies to one who pollutes a brother's widow (who was formerly his sister) by carnal union; a brother who takes his full sister; one who takes his step-mother; one who unites with a cousin through his father or mother; one who has intercourse with a maternal uncle's widow or daughter, a paternal uncle's daughter, or a step-daughter; and one who pollutes with intercourse or takes as wife a blood relative or someone who has had intercourse with a blood relative.

Whether these unions happened after this enactment or before it, we do not doubt that they are all incestuous. We order those involved to stand and pray among the catechumens until they have made lawful satisfaction. We prohibit such unions for the future, although we do not dissolve those entered up till now.

§2. Those forbidden to enter an unlawful union have the freedom of entering a more proper marriage.



Also, from the Council of Lerida, [c. 4]:

C. 9.

The incestuous are excommunicated until satisfaction is made.

It pleases us that those stained by the pollution of incest be admitted into the church for Mass only as catechumens, as long as they persist in this detestable and unlawful concubinage of the flesh. As the Apostle commanded [1 Cor. 5:11], it is never lawful for any Christian to take food with them.

Also, Pope Gregory to Felix, bishop of the city of Messina, [in [Register], XII, xxxi]:

C. 10.

Nor may a woman, whom a blood relative had as wife or stained with unlawful pollution, be lawfully taken in marriage by any Christian. Nor can it be lawful, because such intercourse is incestuous and abominable before God and all people. Indeed, we read that the holy fathers decreed that the name of marriage should not be applied to the incestuous [C. 35 qq. 2 & 3 c. 8].

Gratian: But this applies only to pollution according to the order of nature, not that which violates that order.

For Urban II said to Hugh, bishop of Grenoble:

C. 11.

Pollution contrary to nature does not impede establishment of natural marital affection.

Although it is criminal and condemnable, this pollution does not impede marriage if, as you indicated in your letter, it has been determined under oath that it occurred contrary to nature, and was not repeated many times without effecting a marriage.

Also, Pope Julius:

C. 12.

Let no one marry the widow of one of his wife's blood relatives within three generations.

It is also decreed that no one may marry the widow of his wife's father, the widow of his wife's brother, or the widow of his wife's son. Nor may anyone marry the widow of one of his wife's blood relatives within the three generations. But, if a relationship from the fourth or the fifth generation is discovered, let them not be separated.

The same:

C. 13.(36)

One must abstain both from one's own blood relatives and from those of one's wife.

A man may likewise not be joined in marriage to his own blood relatives or to his wife's blood relatives.

Also, Isidore, from the Council of Mâcon:

C. 14.

One must respect the consanguinity of a wife's relatives as one does that of one's own.

Surely, as one must respect the consanguinity of one's own blood relations, so one must refrain from the relatives of one's wife, because of the law of marriage. For the two are clearly of one flesh, and thus their blood relationships are understood to be common to both, as it is written [Gen. 2:24], ``The two shall be one flesh.''

Also, Augustine, [in Against Faustus, XXII, lxi]:

C. 15.

A son's wife is no different from a daughter.

If husband and wife are no longer two, but one flesh, a son's wife is no different from a daughter.

Also, Gregory, to the bishops of Gaul:

C. 16.

One must respect descendants to the seventh generation.

We decree that each must respect descendants to the seventh generation, and we deny that anyone may approach conjugal union with those who share that affinity. If any have done so, let them be separated.

Also, Nicholas, to the suffragan see of Amalfi:

C. 17.

The same.

Let no one take as wife a blood relative to the seventh generation, or as far as blood relation is known.

§1. A layman with both a wife and a concubine may not receive Communion in the Church.

Also, from the Council of Worms, [c. 32]:

C. 18.

There can be no union between those known or recalled to share common ancestry.

Within the community of the faithful, we do not calculate the number of generations, rather we decree that no Christian may lawfully take to wife a blood relative, or one known or recalled to share common ancestry.

Also, from the Council of Lyons:

C. 19.

Let no one take a wife from among his blood relative up to the seventh degree.

Let none take a wife from among his blood relatives up to the seventh degree, or without the priestly blessing. Let all who are going to marry undertake marriage blessed by a priest.

Gratian: The foregoing authorities prohibit the union of blood relatives to the seventh generation. But this is contradicted by a passage from Gregory to Augustine, bishop of the English, [Chapter vi]:

C. 20.

The English may be joined in the fourth and fifth generation.

A Roman law permits the union of a brother and sister, or of a son and daughter, or of two full brothers with two sisters. But experience shows us that no offspring result from such a marriages. Hence believers can be lawfully joined only after the fourth or fifth generation.

§1. Much later, Felix, then guardian of Messina in Sicily, asked the same humble father Gregory whether he had written to Augustine that marriages contracted by the English in the fourth generation did not need to be dissolved. Among other things, he gave this account:

``I wrote to Augustine, the bishop of the English people, whom you recall was your pupil, as well as to the English people themselves, who had recently entered the Faith. You certainly know that I wrote what I wrote, not for all in general, but for them in particular, lest, out of fear of something more demanding, they might draw back from the good which they had begun. On this, the whole city of Rome stands as witness for me.

``I did not write this command intending that those who were well established in the Faith not be separated if found married to one sharing consanguinity or a relation of affinity to the seventh generation. I wrote it for those still neophytes, since one must first allow such people unlawful things and later instruct them by word and example. As the Apostle said [1 Cor. 3:2], `I feed you with milk, not with solid food.'

``We were then being indulgent concerning what was required, although we were not so before or after, lest the good, which had been planted with a weak root, be destroyed, instead of being strengthened and guided, little by little, to perfection.''

Gratian: The Council of Châlon-sur-Saône also contradicts this:



C. 21.

Henceforth let none be joined in marriage within the fifth and sixth generations.

We overrule this, so that henceforth none may be joined in marriage within the fourth, fifth, or sixth generation. Where this occurred after this prohibition, let them be separated.

Gratian: This authority seems to prohibit marriage in the sixth generation, but permit it in the seventh. But people compute the degree of relationship differently. Some consider a father the first degree and children the second. Some consider children the first degree, denying that any degree of relationship exists between a father and child because a father and child are one flesh. Thus, the authorities who prohibit marriage in the sixth degree consider sons as the first degree. Taking this difference into consideration, the same persons may be either in the sixth or seventh degree.

§1. Also, when Fabian [C. 35 qq. 2 & 3 c. 3], allows those in the fifth generation of affinity to be joined, this appears to contradict the decree of Pope Julius [C. 35 qq. 2 & 3 c. 7], ``as it is not lawful for any Christian to marry a blood relation, so it is also unlawful to marry any of his wife's blood relations, because of they have become one flesh.'' Likewise it contradicts the capitulum of Gregory [C. 35 qq. 2 & 3 c. 10], ``Nor may a woman whom a blood relative had as wife . . .''

But what Fabian said concerns two persons who share affinity, such as the wives of two brothers. If one of these joined another in marriage, her husband could not, after her death, take the surviving sister sharing affinity in marriage, unless they were in the fifth degree of affinity. Hence, one who marries someone's step-mother cannot, after her death, marry his step-daughter. Pope Julius said the same elsewhere [C. 35 qq. 2 & 3 c. 12], not speaking of a wife's blood relative but of a blood relative's widow, ``Nor may anyone marry the widow of one of his wife's blood relatives from the fourth generation.''

Pascal II, however, writing to Bishop Reginus, describes a third kind of affinity, where union is not prohibited beyond the second degree. He says:

C. 22.

The spouses of two cousins cannot marry the same man.

Further, the impediment of public propriety itself objects that it is beyond canonical authority for the spouses of two cousins to marry, one after the other, the same man, although they are married at different times.



Gratian: One should interpret Gregory and Julius' statements about a husband or wife's blood relationship as meaning that, after one dies, the survivor may not marry any of the deceased's relatives.

This shows to that degree all must abstain from their own blood relations and those of their spouses.





QUESTION IV

Gratian: The next question is over why the union of blood relatives is prohibited up to the sixth degree.

On this matter, Isidore writes as follows, in Etymologies, XI, vi:

C. 1.

Why one respects blood relationship to the sixth degree.

Blood relationship weakens in the kindred relationship by degrees, until it disappears in the final degree, and relationship ceases. The law observes it in the first degree as to the bond of marriage, and then continues to recognize it until it disappears. Thus, blood relationship has been established up to the sixth degree of kindred, so that, just as after six ages, the development of the world and the human race will come to an end, so the kindred relationship comes to an end after six degrees.



QUESTION V

Gratian: On the degrees of consanguinity and how they are computed, Isidore says:

C. 1.

How the degrees of consanguinity are enumerated.

The series of six degrees of consanguinity is enumerated in this way: A son or daughter, who is also a brother or sister, is the trunk. Below, attached to these, as to a root, come these branches: grandchildren, first; great-grandchildren, second; great-great-grandchildren, third; great-great-great-grandchildren, fourth; great-great-great-great-grandchildren, fifth; great-great-great-great-great-grandchildren, sixth.

Also, Alexander II writes to the clergy of Naples and the bishops and judges throughout Italy, concerning this:

C. 2.

How the degrees of consanguinity are to be calculated.

A new question has arisen about the calculation of degrees of consanguinity and has been referred to the Apostolic See. It was raised by certain individuals inexperienced in the laws and canons. They were enumerating the degrees of relationship contrary to the sacred canons and ecclesiastical usage, and had made the unheard of and erroneous claim that natural siblings were of the second generation, their children of the fourth, and their grandchildren of the sixth. Calculating offspring in this manner, they said that the sixth degree was reached at this point, and that these men and woman could contract nuptial relations.

To support this profane error, they gave as evidence the secular laws that the Emperor Justinian promulgated to govern the succession to consanguinity [Instit. 3.5-6]. Convinced by these, they assert that siblings are to be counted as in the second degree, their children in the fourth, and their grandchildren in the sixth. By ending the genealogical sequence this way, they overturned by perverse trickery the numbering used by the holy Fathers and the Church's ancient calculation that we have received.

God allowing this, we have carefully discussed this question in a synod held in the Lateran council chamber, having convoked for it the bishops, clergy, and judges of the diverse provinces.

§1. After perusing carefully and at length the laws and the sacred canons, we found that, for one reason or another, the calculation used in the laws is different from that of the canons. The laws mention degrees for no other purpose than explaining how succession passes from one consanguineous person to another. But the canons calculate offspring to discover the generations in which one must abstain from marrying those who are consanguineous.

The former provides that inheritances be granted to relatives in a lawful manner. The later provides that the faithful celebrate their marriages properly and canonically. In the laws, degrees are distinctly enumerated only to the sixth, in the canons, they are distinguished up to the seventh. Because inheritances pass only from one person to another, the secular emperor wanted to assign a single person to each degree. But, because marriages require two persons, the sacred canons assign two persons to each degree.

§2. Nevertheless, with either calculation, anyone who examines the matter carefully and precisely will see that the sense is identical, the meaning is the same, and both come to the same result. In his laws, Justinian does not define the degree to which consanguinity extends. The canons number no generation beyond the seventh. After defining the sixth degree, the emperor remarks in his own laws [Instit. 3.6]: ``This is sufficient to show how the degrees of cognates are numbered. From this it should be plain how to enumerate further degrees. For each person born, one adds a degree.''

Notice that these words show plainly how degrees are enumerated. Thus, by showing the computation of any degree, not only of he sixth but also of any beyond, one can understand how to enumerate degrees beyond the sixth. When he mentions further degrees, it clearly shows that there are other degrees to enumerate after the first six. This is not remarkable, since the said emperor had gone up to the tenth degree in the preceding passage. Thus it is clear as day that he did not mean there were only six degrees.

§3. Now let those misled by this error pay attention and focus their minds, if they can. Where, in the laws, succession passes through agnates or cognates, there is no doubt that these are consanguineous. By Justinian's witness, none may succeed to another, unless they are within the tenth degree. But those who succeed one another are consanguineous. So if there are some consanguineous in the tenth degree, then consanguinity can in no way (as these say) stop at the sixth degree.

So how would they reply to this? When the degrees are calculated and numbered, does consanguinity then stop at the sixth degree or not? If it stops there, the laws are wrong, since they allow those consanguineous to succeed one another up to the tenth degree. But if consanguinity does not end with the sixth degree, then those who refuse to calculate consanguinity beyond the sixth degree are wrong. Thus either the laws are wrong, or those who want to stop consanguinity at this point are.

§4. But, as the laws and canons are correct, we say that consanguinity does not end at the sixth degree, but ends at the seventh degree in accord with the canons. Both calculations, as we said above, reach the same result. Two degrees in the laws are equivalent to one degree in the canons. So, siblings who are in the second degree according to the secular laws, are in the first degree according to the canons. The siblings' children, who by the former system are in the fourth, are calculated to be in the second by the later. Grandchildren, who are numbered in the sixth, are thus in the third. Those who in the eighth and tenth by the laws are in the fourth and fifth by the canons. For the rest, it is understood that those in the sixth and seventh degree by the canons are in the twelfth and fourteenth in the laws.

§5. The very prudent Pope Gregory understood the calculation this way, when he was asked within how many generations the faithful could marry. In his rescript to Augustine, bishop of the English, he evidenced the secular laws in this way [C. 35 qq. 2 & 3 c. 20 §1]: ``A Roman law permits the union of a brother and sister, or of a son and daughter, or of two full brothers with two sisters. But experience shows us that no offspring result from such a marriages. Hence believers can be lawfully joined only after the fourth or fifth generation. So the faithful must be considered legally married, if in the third or fourth degree. But in the second, as we said, they are to abstain from marriage.''

This clearly shows that siblings' children are reckoned as in the second degree. And if sibling's children are numbered in the second, the siblings themselves must be in the first. So if siblings are in the first and their children in the second, then grandchildren are in the third, the great-grandchildren in the fourth, and so on up to the seventh.

§6. There are some, who, because Gregory says that the faithful could be married in the third or fourth generation, made this an excuse for contracting unlawful matrimony. They say this can justly be done because that very prudent teacher gave a ruling to that effect. Some, who seek to protect themselves by such subterfuge, say that the same father's opinion allowed this, not for all in general, but for the English people in particular.

For later when he was asked by Felix, the bishop of Messina in Sicily, whether he intended this to be observed by the whole Church [C. 35 qq. 2 & 3 c. 20 §1], he said that he had commanded this, not for others, but only for that people, lest they desert the good they had begun out of fear of its difficulty. But later, when they had become well rooted in the Faith, they were to observe the usage of the universal Church. That is, no one was to attempt marriage with someone having consanguinity or affinity up to the seventh generation.

§7. So, the laws and the decision of the very prudent Pope Gregory show clearly how we ought to calculate the degrees of consanguinity. Nevertheless, our opponents claim another defense. Some say, if consanguinity ends with the sixth degree, those branches of persons beyond that degree in the diagram of the Tree [see Appendix] ought to be cut off as superfluous. But, as all those shown in the diagram of the aforesaid tree are numbered, they belong to one family, they can never be separated from one another by any reduction of consanguinity, just as no one cuts off his arms and legs by his own hand without condemnation.

§8. The precept of the sacred canon [C. 35 qq. 2 & 3 c. 18] that commands us to refrain from those consanguineous because a common ancestor can be recalled is not voided by the aforesaid calculation. For, if relationship is canonically and usually numbered to seven degrees, then there is no consanguinity beyond that and further degrees are not named. Thus succession cannot be claimed, nor is their any common ancestor to remember.

§9. To avoid the confusion about the calculation of consanguinity that some have experienced, we shall explain the enumeration under discussion. There are some who begin the genealogical enumeration not with siblings, but with their children, that is with the children of the parent's siblings. They say [C. 35 q. 5 c. 1] that the children of siblings ought to be calculated as the first degree, because the siblings are like the trunk from which branches extend. But, properly understood, this calculation of degrees means nothing different from that explained above.

Those who begin the enumeration with the children of siblings, do not count beyond the sixth degree. Just as the world has six ages, and human life has six stages, so they affirm that likewise six degrees are to be computed for consanguinity [C. 35 q. 4 c. 1]. They say that new unions can be formed beyond this, since no consanguinity can be discovered.

§10. So, the computation beginning with children of siblings, extends only to six degrees, while that beginning with siblings extends to seven. Nor do they mean anything different, although the numbering of the degrees differs. The last generation, if one starts numbering with siblings is the seventh, if one begins with the children, it is the sixth.

So then, brothers and sons, in determining consanguinity, we command you by Apostolic Authority, that in all cases you are to calculate genealogical descent as the holy fathers commanded it, and as the ancient usage of the Holy Universal Church has calculated it for a long time.

If anyone of perverse and obstinate mind wishes to deviate from the correct path, which the Apostolic See has given, and tries to determine relationship for the celebration marriage in some other way, he is first to be smitten with a spiritual penalty for his temerity, and then to know that he is cut off by the sword of perpetual anathema.




Also, Gregory:

C. 3.

Why those consanguineous to a wife are said to be related to her husband, and how affinity is calculated.

Next, on affinity, which you said was a relationship which extends to the husband from the wife's side, or from the husband's side to the wife. If, according to the divine decree [Gen. 2:24], my wife and I are one flesh, this certainly creates a relationship between each of us and the other's family. So my wife's sister and I will both be in the first degree. Her child will be in the second to me, her grandchild in the third, and so on for the rest of the succession.

§1. I must respect my neighbor's wife whatever degree of relationship she is in. A wife must respect the her husband's relationship for all the degrees of cognates. Whoever thinks otherwise is of the Antichrist, and we should be on guard against him, for he is openly attacking what you know to be the divine law.

Also, Pope Zacharias:

C. 4.

How the degrees of relationship are calculated.

We calculate the degrees of relationship thus: My sibling and I are in the same generation and are in the first degree, that is we are separated by no degree. My child and my sibling's child are the second generation, and create the second degree, nor are they separated by other than that degree. And so on throughout the succession.

Next, on affinity, which you said was a relationship, etc. And so on, as above, in the capitulum of Gregory [C. 35 q. 5 c. 3].






Also, Pope Alexander II:

C. 5.

It is equivocation when a wife's sister is called a cognate.

When a wife's brother or sister is called a cognate, that is done by equivocation, on account of the common way of speaking, not because of any cognation. A brother's wife is better called a fratrissa than a cognate. A husband's brother is called a levir. The wives of two brothers are called ianitrices, since they both have one door (ianua), or enter by the same door. The husband's sister is called a glos. The sister's husband has no special name, nor does the wife's brother.



Also, Isidore:

C. 6.(37)

The names of the degrees in direct line and collaterally.

The first degree, moving up the line of descent, includes father and mother; moving down, son and daughter. In this degree no one can marry.

§1. The second degree up includes grandparents, down grandchildren; collaterally, brother and sister. There are two of each of these individuals. One has a grandfather and a grandmother on both the father's and the mother's side. The case is essentially the same for those persons in successive degrees, they are doubled, each in their order. (So there are two individuals in the second degree because there two grandfathers, the paternal and maternal. These are also two types of grandchildren, those born from a son and those from a daughter. Collaterally there are bothers and sisters, that is, the father's and mother's brothers, who are called uncles. Thus they are doubled for that generation.)

§2. The third degree above includes great-grandparents, and below great-grandchildren. Collaterally there are the children of one's brothers and sisters; and uncles and aunts, that is the father and mother's brothers and sisters.

§3. The fourth degree above, great-great-grandparents; below, great-great-grandchildren. Collaterally: a one's brother or sister's grandchildren; and first cousins, that is the children of uncles and aunts. Also here are great uncles and great aunts, that is, the brothers and sisters of a grandparent.

§4. The fifth degree above, great-great-great-grandparents; below great-great-great-grandchildren. Collaterally: a brother or sister's great-grandchildren; the children of a first cousins; and those often called second cousins,(38) that is, the children of great uncles and great aunts.

To these we add great-great uncles and aunts. These are the brothers and sisters of great-great-great-grandparents (Like those in the degrees of which we will write, these have no distinctive names.)

§5. The sixth degree above, great-great-great-great-grandparents; below great-great-great-great-grandchildren. Collaterally: a brother or sister's great-great-grandchildren; first cousin's grandchildren; grandchildren of great uncles and great aunts; the children of those often called second cousins(39); and great-great-great uncles and aunts, that is the brothers and sisters of great-great-great-great-grandparents. (This cannot be explained more precisely, as the author has explained.)

§6. In the seventh degree, cognates of direct line above and below are not properly named. But collaterally there are: a brother or sister's great-great-grandchildren, and children of a maternal male first cousin.

§7. These compose the six degrees of succession, and beyond them, neither in name or reality, is any succession to be found. (These six degrees include the names for all one's relations. Beyond them no affinity is found, nor can succession be extended.)

Gratian: The authority of Isidore, Gregory, and Alexander is sufficient to demonstrate how many degrees of consanguinity and affinity there are, and by what names they are called.




QUESTION VI

Part 1.

Gratian: The next question concerns who can denounce a union of blood relatives or give testimony to annul it.

About this, Pope Fabian decreed:

C. 1.

Only blood relatives or, if relatives are lacking, reputable witnesses of mature years may testify on relationship

before a synod.

Let no one move a complaint concerning blood relationships in someone else's family, or testify to blood relationship before a synod, except knowledgeable members of the family itself, that is, a father, mother, sister, brother, uncle, aunt, or their offspring.

But, if all such relatives are lacking, the bishop may canonically interrogate reputable persons of mature years who know the relationship. Then, if the couple is found to be related, let them be separated.

[Pope Celestine's decree for the church of Florence:

[PALEA. C. 2.(40)

[It seems to us that the second woman, whom he married contrary to the Church's prohibition, cannot be his wife, even if he had not already been betrothed to the first. Anything done contrary to the Church's prohibition and command is not considered ratified, because it is irregular, as the authority of both divine and human law proclaims.

[Since the woman, whom he took irregularly and contrary to prohibition, is not his wife, he must be compelled to take back the one he swore to and betrothed, and from whom he had offspring. This is to be done so that the force of their oath not be cheapened, the fidelity they promised each other be protected, and their offspring be nourished and educated in the worship of God. Thus, no one shall be able to use this as an excuse for perjury and deception.

[§1. Ancient custom and law allow parents, brothers, and relatives of both sexes to give testimony for upholding or annulling a marriage. The parents should be the first to testify, and if they are lacking, then those most closely related, because everyone tries to learn his own genealogy from witnesses, diagrams, and the listing of his ancestors. Who are more suitable witnesses than those whose knowledge and interest required their presence and consent lest the marriage be legally void?

[§2. It is read [cf. Dig. 22.5.2], ``A father may not testify against his son, nor the son against his father.'' This is certainly true in criminal cases and contracts. But in contracting or annulling marriage they should fittingly be admitted, because of the requirements of marriage and because it is acceptable.]

Also, Urban to Richar, bishop of Genoa:

C. 3.

Who should testify to relationship under oath.

We inform you that marriages should be dissolved without delay if two or three relatives of a living or dead wife testify to the relationship under oath. This is also to be done if two or three Genoans of mature years, who know the relationship, and are truthful witnesses of good repute, testify to the blood relationship without partiality, compulsion, bribery, or malice.

If the relatives or strangers will give verbal witness to the relationship and will not or cannot support it by oath, the marriage should not be dissolved. Rather a fitting penance shall be imposed for defamation on the one who brought the denunciation, as well as for incurring sin if he contracted another marriage.

Also, from the council of Pope Urban in Apulia:

C. 4.

If no one will affirm incest under oath, they are answerable to their own consciences.

Marriages are to be dissolved if two or three testify to consanguinity under oath, or if the couple themselves confess to it. If neither occurs, bishops should exhort them by their baptism, their faith in Christ, and Christ's judgment, to say plainly in true obedience whether, as the rumor has it, they know each other to be blood relatives.

If they deny it, they are to be left alone. But they should know that, if they have anything on their conscience, they are excluded from the community of the Church, the Body and Blood of the Lord, and the communion of the faithful. They are likewise subject to degradation [C. 6 q. 1 c. 17], until they desist from the crime of incest. If they are separated by the bishops' judgment, the young are not forbidden to contract another marriage.

Part 2.

Gratian: So, unions of blood relatives can be annulled after denunciation or testimony by the preceding witnesses. Oaths should be required of those denouncing a marriage. The Roman Ordo prescribes the following:

C. 5.

The oath of one denouncing a marriage.

You shall not conceal from your bishop, or the delegate he has ordered to investigate, anything you know or have heard from neighbors or older relatives about any relationship said to exist between N. and his wife. Nor shall you allow yourself to be influenced by ulterior motives, partiality, hope of reward, or family ties, when he interrogates you concerning this. So help you God and the relics of these saints.

C. 6.

The oath of a witness.

You are to observe, for whatever you know, the same oath he has just sworn concerning the determination of the relationship between that son and his wife N., so help you God.



Part 3.

Gratian: The preceding was not an oath of separation, but that taken before a synod, as instituted by Pope Eutyches, who says:



C. 7.

The oath before a synod.

A bishop sitting in the synod, after an appropriate speech, should select seven men, or more it this seems expedient, from the people of the parish. They are to be especially mature, honorable, and truthful. Then, presenting them the relics of the saints, he shall bind each by this oath:

``You shall not conceal from the bishop, or the delegate he has ordered to investigate, anything he requests of youwhether you previously knew or heard it, later discovered it, or learn about it at some later datethat has been done, or will be done, contrary to God's will and rightful Christianity in this parish. If you know or learn of anything that is matter for the synod under the ministry of the bishop, you shall not conceal it because of partiality, fear, bribery, or family connections. So help you God and these relics of the saints.

``This oath sworn concerning synodal matters, you shall observe for all you know or hear before, after, or on the day of your interrogation. So help you God.''



Part 4.

Gratian: This was excepted from the beginning of the oath.

In addition, Pope Innocent II prescribed an oath of separation for Otto, bishop of Lucca, saying:

C. 8.

The oath of those testifying to consanguinity.

You have been consulted about a relationship, on which an appeal has been brought to our hearing. We have also received letters from other brothers who narrated the case in different ways. At first, they disagreed as to the degrees and the number of persons. But later, in another letter, those who calculated this relationship were said to be in agreement.

In cases of his kind, the nature of those bringing a denunciation against anyone must be taken into special consideration. They must also take an oath that they are not testifying because of partiality, bribery, or animosity against those in question, and that they shall testify as to what they believe to be true or have heard to be so from their ancestors. No divergence or contradiction many be present in any of this.

Part 5.

Gratian: Those who separate from each other take an oath like this:

C. 9.

The oath of separation.

Henceforth you shall, for no reason, unite in marriage or adultery with this woman, your blood relative. You shall not eat with her, drink with her at the same table, or stay with her under one roof. You shall meet her nowhere, except in a church or other public place that is free from scandal, and only out of necessity and in the presence of suitable witnesses. Nor shall you take another wife, unless you have done penance and received permission from your bishop or his delegate. So help you God.






Part 6.

Gratian: One may not lawfully dismiss one's wife for consanguinity and take another, unless the charge has been proved first.

Hence Alexander II to William of Monistol:

C. 10.

Unless consanguinity has been proved before the Church, one may not lawfully dismiss one's wife.

We have learned through numerous reports that you want to eject your wife and take another, asserting a plea of consanguinity. Hence we prohibit this by apostolic authority and command you not to send your present wife away and take another until your case has been justly tried by a council of religious bishops.

Part 7.

Gratian: One receiving back a wife unjustly sent away will swear this way:

C. 11.

The oath of reconciliation.

Henceforth you shall so hold this wife, N., whom you unjustly send away, as a husband should hold a wife, with love and proper respect. Nor shall you separate from her for any wicked motive or take another while she is alive. So help you God.

Gratian: Nothing can justify annulment of a marriage on one witness' testimony alone. But the Lord said [Deut. 19:15], ``In the mouth of two or three witnesses every word shall stand.'' Also, the Council of Lerida, [c. 20], says, ``In accord with divine law, the determination of any controversy about ecclesiastical matters requires two or three witnesses, for the Lord said [cf. Deut. 19:15], `One witness shall not rise up against any man, but in the mouth of two or three witnesses every word shall stand.' ''

Also, it says elsewhere [cf. Cod. Theo. 2:14], ``The testimony of only one person, however versed, ought not to be believed.'' Thus it is most evident that marriage may not be annulled on one person's assertion alone.





QUESTION VII

Gratian: The next question is whether those born from the incestuous should be called children. Augustine decides this, in the book Questions on Genesis, lxxvii, where he says:

C. 1.

Those born to the incestuous are not called children.

What does it mean [Lev. 20:21], ``Because he has uncovered his sister's nakedness, they shall be without children,'' when children were born from such unions and are still so born today? Does this not mean that God's law declares that those so born are not to be regarded as children and have no right to succeed their parents?



QUESTION VIII

Gratian: Gregory determined the degrees of consanguinity or affinity in which those who married unknowingly may remain united, in his Register, as follows:

C. 1.

Let those related from the seventh generation, who married unknowingly, not be separated.

If those in a degree of relation from the seventh generation have unknowingly married and, after many years, have children, do not separate them if they are in the sixth or even fifth degree of relationship. Leave them together until we can, God willing, speak with you face to face. I do not, however, command this, but allow it as an indulgence.

But, by all means, separate those related within those two degrees who have contracted a new marriage within the year. Further, let general statutes be issued throughout the entire province that forbid anyone from perpetrating such a crime. Let those who have done so be separated and severely penalized by punishments, without possibility of remission.

As we have written to you before, those who have married their wife's blood relatives and who are within these degrees, should be separated. Or their case is to be suspended, until, God willing, we come together.

§1. As for those whose wives have died, who wish to contract a second marriage, it is just, decent, and reasonable to decree that they must refrain from their wives' blood relatives up to the fourth degree of their genealogy. But, in accord with the forbearance of Holy Mother Church, we treat this with greater leniency.

Finally, everything evil and unlawful should be in every way restrained by the censures of the secular law, fitting coercion, and the imposition of strict discipline, so that there may be peace in the future.

The same, to Felix, bishop of the city of Messina:

C. 2.

Let those married within the fourth or fifth

degree be separated.

We decree that such things be beneficially prevented in advance, lest any of the faithful attempt to marry a blood relative within the boundaries of affinity determined by kindred succession. We must carefully observe whatever our ancestors determined in this. We give no one permission to contract a union within the degree of relationship numbered as seventh, that is, a union with anyone who shares that relationship by consanguinity on the father's or mother's side,

But let those joined in the fourth or fifth degree be separated. For it is written [Lev. 18:6], ``No man shall approach her that is near of kin to him to uncover her nakedness,'' and again [cf. Wis. 4:19], ``The soul, who has done this in any way, shall perish from the midst of the people.'' Those forbidden unlawful union surely have the freedom to enter a more decent marriage.

Unless they have contumaciously persevered in this crime until one of them has died.

Hence from the Council of Orleans:

C. 3.

One who has persevered in incest until the death of his partner may not take a wife.

While they persevere in that detestable and wicked crime, the incestuous are not counted among Christian believers. They are considered catechumens or Gentiles. That is, they may not take food or drink with Christians, but must do so alone. Nor may they receive the kiss of peace or be greeted by them.

If they refuse to obey their priests, withdraw from this wicked crime, and be reconciled by public penance, they are to be considered as imperiled by an unclean spirit and counted among those of whom the Truth himself said [cf. Mt. 18:17], ``If he refuse to hear you, let him be to you as the heathen and the publican.''

And if one of them should die, let the other do strict penance for the rest of his life and be deprived of the hope of marriage.

Gratian: This authority orders the Church to separate those joined in the fourth or fifth degree of consanguinity.



QUESTION IX

Part 1.

Gratian: So the question arises of whether the first marriage should be restored when the Church erroneously separates a couple because of the fraud or ignorance of witnesses if the couple, after separation, have contracted second marriages, and it is later discovered that the witnesses gave deceitful or false testimony. Many arguments and authorities prove that this cannot be done. For, unless a sentence is revoked on appeal within the term fixed by law, it obtains irrevocable force.

Hence St. Gregory writes:

C. 1.(41)

It is not expedient to change something reasonably decided.

It is suitable in all matters of ecclesiastical discipline and government that anything reasonably ordered or decided not be later overturned by any opposition.

Also, Stephen V to Paul, bishop of Piacenza:

C. 2.

It is presumptuous for the temerarious to reconsider a decision that successors have confirmed as useful.

A consideration of our position, under the guidance of reason, moves us to confirm what our predecessors have decided to be useful. It no less moves us to punish the actions that the temerarious have presumed to stir up. Anyone, who rescinds what has been established as useful or rashly violates what has been confirmed, should count himself guilty before the Divine Judge.

It would undermine the vigor of the ecclesiastical order if things were rashly declared unlawful or something prohibited were done with impunity. So, if we negligently overlooked wicked transgressions, we would certainly open the way to further excesses.

Gratian: The sentence was reasonably given and not appealed within the fixed time. Hence the first marriage can never be restored.

Reply to the preceding: To rescind a judgment and disturb something reasonably decided is one thing, to correct something that happened because of fraud is another. Anyone may lawfully correct his own error, and so it is better that one revoke something perpetrated unlawfully and allowed by one's predecessors. Moreover, the wife unlawfully separated from her husband and joined another while he was alive. But the Lord orders that a wife may separate from her husband only on account of fornication.

So, if a woman, believing her husband is dead, marries another and then, under some pretext, withdraws from that union, the Church's judgment must compel her to return to the man she abandoned. But, if the man believed dead returns even after three years, the first marriage must be restored [cf. C. 24 qq. 1 & 2 c. 1].

So, if it is discovered that those separated on account of consanguinity were not blood relatives, the bonds of the first union must be restored.

Part 2.

§1. The authority of Popes Hilary and Nicholas [C. 35 q. 9 cc. 3 & 6] prove that anything unlawful, which is allowed, or has been allowed, must be corrected. Likewise, a sentence, even of the Roman See, can be changed for the better.

Hilary, bishop of the city of Rome, presiding in synod, said, [c. 4]:

C. 3.

What is or was unlawfully allowed by a predecessor

should be corrected.

If one wishes to escape his own peril, he will condemn anything he committed unlawfully, or found his predecessors to have allowed unlawfully. We wish in no way to use harsh threats. Yet if anyone has been delinquent in one of God's cases, through contumacy or some other excess, or has refused to correct some fraudulent act, he will bring upon himself the punishment he wished to visit on the other.

Thus, so that this be henceforth monitored, let all judgments and accusatorial subscriptions be so handled that unlawful recourse to synodal judgement be prevented.

Also, Gregory:

C. 4.

An apostolic judgment can be modified in accord with changed circumstances.

Judgments of the Apostolic See are always initiated with moderate counsel, drafted with mature patience, and promulgated after grave deliberation. So these must not be changed unless they were issued as subject to retraction or to modification in accord with changed circumstances.

Also, Innocent, [in Letter xxii, to the bishops of Macedonia]:

C. 5.

When others request it, the Apostolic Church may rehabilitate those whom their predecessors condemned.

In this subject of great importance, the pardon of Photinus, I have now re-examined the sentences of my predecessors, something that involved great trouble and labor. As you recall, the sentence concerning him was solemnly decreed. But, as you assert, it was initiated by chicanery and obtained from our See through false reports. To remedy this defect, we, following apostolic practice after a condemnation, delegate to you the power to grant pardon at your discretion.

We found it nearly impossible not to assent to your convincing arguments, as you are so good and dear to us. So, dear brothers, reconcile Bishop Photinus subject to your approval, sentence, and postulation, for we pray that it is lawful to rehabilitate him. Receive this decision, now modified for the better through sharing in your own labor and witness. But do not seek the same for Eustasius, as it is clear to me that he is to be deprived of the grace of the deaconate.

I have heard you freely as desirous of salvation, nor will I freely permit anything to be done contrary to it. You have extended your hand to me, asking mine, now I extend mine to you, asking yours.



Also, Pope Nicholas [to the Emperor Michael, in Letter vii]:

C. 6.

A sentence of the Roman See may be modified for the better.

We do not deny that a sentence of the Roman See may be modified for the better or dispensed for grave necessity if it was obtained by fraud or decreed in view of the age and times. Indeed, we read that the illustrious Apostle Paul himself granted certain dispensations which he afterwards regretted [Acts 16:3; Gal. 5:3].

When, however, the Roman Church, after thorough consideration, grants a delegation to this effect, it does not wish to retract anything properly decided.



Also, from the Book of Pontiffs:




C. 7 (8).(42)

Successors may rehabilitate those deposed by their predecessors.

Eugene deprived Theodosius of the honor of his priesthood; his successor, Gregory IV, consecrated him bishop of the church of Zengg. Leontius was deposed as a priest, and afterwards made patriarch of Antioch. The bishop of Missinen was condemned by Pope Felix; his successor, Gelasius, restored him to Communion and reinstalled him in his church.



Also, Innocent to the bishops in Macedonia, [in Letter vii]:

C. 8 (7).

The authority of the Apostolic See can rescind its sentence.

Your pious minds should not think it difficult to rescind a sentence, because the truth often comes more to light on further consideration. A miscarriage may be revoked for higher judgment and then reversed without repentance. Justice often revised is a divine fruit.









[C. 9.]

Gratian: As the sentences of the Roman See can be changed for the better, so the sentence of any church may be reasonably revoked if it was obtained through fraud.

QUESTION X

Gratian: Does she who passes to a second marriage keep her affinity to the first husband's blood relatives, or can offspring of the second marriage be joined to the first husband's blood relatives?

About these matters, Gregory wrote to Venerius, bishop of Cagliari, as follows:

C. 1.

Affinity is not lost by a survivor.

I thank Your Fraternity, loving brother, as well I should, for your studious sagacity. Since you inquired properly, you have made me happy. Hence I cheerfully answer your question.

You have consulted the Apostolic See on whether a woman joined to a foreigner by a nuptial union belongs to his blood relationship after he is dead, or whether the title of relationship is dissolved when she is under another man. And, if so, can her future offspring lawfully form unions with the first husband's relatives.

The word of God is valid, strong, lasting, persevering, and unchanging, not transitory. The very Truth himself, who is God and the Word of God, said [Lk. 21:33], ``Heaven and earth will pass away, but my words will not pass away.'' Before God appeared in the flesh among us, Adam said at his inspiration [Gen. 2:24], ``A man shall leave father and mother, and shall cleave to his wife; and the two shall be one flesh.''

When Truth arose from the earth and was visible in his humanity on earth, he was asked if a man could lawfully leave his wife. He prohibited this and forbade anyone to break the martial union, except for fornication [Mt. 19:9]. Hence, he gave the same judgment to them that, before the centuries, the Word remaining with the Father had inspired in Adam. He confirmed what the first man had declared [Mt. 19:5], ``For this cause a man shall leave his father and mother, and cleave to his wife, and the two shall become one flesh.''

If they become one flesh, how can an individual be one spouse's relative without being the other's? We cannot believe that this is possible. Moreover, when one dies, the other does not lose affinity, nor will another conjugal union dissolve the affinity from the first union. Nor may offspring of the second union marry the first husband's relatives, for the word of the Lord is valid and strong. Indeed one prophet said [cf. Is. 40:8], ``The word of our Lord endures forever,'' and another prophet said [cf. Ps. 148:5-6], ``For he spoke, and they were made; he commanded, and they were created. He has established them for ever and for ages of ages, and his commandment that shall not pass away.''

In accord with the word and the commandment, he makes the two (that is the male and female) one flesh. He who does this is the same one who does not cease to join an unlimited multitude of both sexes to himself, as the very Truth said [Jn. 17:20], ``Not for these only do I pray, but for those also who through their word are to believe in me, that all may be one, even as you, Father in me, and I in you; that they also may be one in us.''

One denies that the word of God is valid and strong if, through sacrilege and rash presumption, he seeks to extinguish relationship for those who are dead, disguises it under another form of affinity, or believes the offspring of the second union can lawfully unite with relatives of the first. One who so easily or so quickly dissolves a union does not believe that the word of God remains forever.

Take earth from four far distant places and fashion them together into the form of a human body with any shape or size you wish. Can any human skill ever separate the four parts from each other, so that each could be recognized? Thus, from the four branches of a family, two are made one, and in the two there is a single creation.

You can see the parallel here to the four elements from which man was created if you distribute any species, which is separated into a number of divisions, throughout its different and distinct parts. The same is the case for metals. The painter, whose art imitates nature, shows this with his colors, when he mixes them and creates bodies from the visible hues.



Also, Innocent:

C. 2.

Offspring of a second marriage ought not marry the first husband's blood relatives.

If a man's married uncle dies, and the widow later took another man and had children, we prohibit these to have any intercourse with that man, because husband and wife are one flesh.



Also, from the Roman Synod:



[C. 3.]

If a woman passes to a second marriage and has offspring from it, they can in no way associate in marriage with her first husband's relatives.



[Also, Pope Hyginus:

[PALEA. C. 4.

[The same.

[If a woman passes to a second marriage and has offspring from it, the offspring cannot marry her first husband's relatives to the fourth generation.]

[Hence Pope Innocent:

[PALEA. C. 5.

[The same.

[If a woman passes to a second marriage and has children by her second husband, the holy Roman synod prohibited them from marrying her first husband's nieces and nephews.]




CASE THIRTY-SIX



Gratian: Without her father's knowledge, a man plied a girl with gifts and then invited her to a banquet. After the banquet, the young man attacked the virgin. When they discovered this, her parents gave the girl to the young man, and, in the manner of those being married, the young man gave her a dowry and publicly took her as wife. It is asked:

Did he commit abduction?

Second, can one abducted marry the abductor with her father's consent?



QUESTION I

Gratian: Many authorities prove that he committed abduction.

For Isidore says, in Etymologies, II, xxxiii:

C. 1.(43)

What abduction is.

Abduction (raptus) is unlawful coitus named from its being a seduction (corruptus). Hence, he who abducts engages in debauchery.

Also, Pope Gelasius:

C. 2.(44)

When abduction is committed.

The law of earlier princes [Cod. Theo. 9.24.1 pr.] said that abduction was committed when a girl was carried off, as to whose marriage nothing had previously been arranged.

Gratian: Since she was seduced through unlawful intercourse and taken away, that is, removed from her father's house, and nothing had previously been arranged concerning her marriage, this was undeniably an abduction.

But not every act of unlawful intercourse, nor every unlawful deflowering, is an abduction. Fornication is one thing, debauchery another, adultery another, incest another, and abduction yet another.

§1. Fornication is any kind of unlawful intercourse that does not involve one's lawful wife, but it is especially intercourse with a widow, prostitute, or concubine.

§2. Debauchery is properly the unlawful deflowering of a virgin with her consent, but without a preceding conjugal pact, if, after her father discovers she has been seduced, he does not immediately take the injury to heart.

§3. Adultery is the violation of another's bed. Hence, adultery is called approaching another's bed.

§4. Incest is the abuse of blood relatives, or of those with whom one has affinity. The incestuous include those abused by relatives or others with whom they share affinity [cf. De Poen. D. 1 c. 6].

§5. Abduction is committed when a girl is forcibly removed from her father's house in order to seduce her and take her as wife. It does not matter whether force was used on the girl alone, the parents alone, or on both. This is punished by death. But, if the man flees to a church with the girl he has taken, he is guaranteed immunity from capital punishment by the privilege of the Church.

Hence one reads in the [First] Council of Orleans, [c. 4]:

C. 3.

What is done if an abductor flees to a church with the

girl he abducted.

We decide and decreed concerning abductors that, if the abductor flees to a church with the girl he abducted, and it is determined that he used force on the woman herself, she is to be freed immediately from the abductor's control. The abductor is granted immunity from the death sentence, but he shall be subjected to slavery, or have the opportunity of redeeming himself.

When the woman abducted has a father, if she consented to the abduction, let her be returned to her father's control after absolution. And let the abductor be punished by her father, subject to the above conditions.

Gratian: This authority clearly shows that force is sometimes inflicted on the parents but not on the girl, since it says, ``if she consented to the abduction.'' Sometimes both suffer violence, as when it said earlier, ``If the abductor flees with the girl he abducted, and it is determined that he used force on the woman herself.'' Force is inflicted on the girl but not the parents when the girl is carried off by force for the sake of unconsenting sexual intercourse, but with her father's consent.

Neither the parents nor the girl suffer force, if the parents do not intervene, and she does not object to being carried off by force. To seduce a woman by promises is one thing; to inflict force on her is another. Hence, because here force was not inflicted on either, the law cannot call him an abductor.

But the word abduction is used in two ways. There can be ``abduction'' of property itself or of the use of the property when that is appropriated by force. Property is abducted when its ownership is seized by force and detained in perpetuity. Or the property itself may not be affected, but its use alone may be usurped by force, contrary to the owner's prohibition. So, he did commit abduction because he deflowered the girl's virginity contrary to her objection.



QUESTION II

Part 1.

Gratian: The question remains whether an abductor, having been purged of the crime of abduction, can take the girl he carried off as wife. The authority of the holy canons absolutely prohibit this union.

For it reads in the Council of Chalcedon, c. 27:

C. 1.

Abductors of girls and those who cooperate with them

are excommunicated.

This holy synod has decreed that those who abduct girls or women, under the pretense of living together with them, and those who cooperate or live with them are to be degraded from their rank if they are clerics, or anathematized if they are laymen.

Also, Symmachus, [in the Letter to Caesarius, 3]:

C. 2.

Because of the inhumanity of the crime, let abductors of widows or virgins be cast out.

Because of the inhumanity of their enormous crime, we abominate the abductors of widows and virgins. We pursue even more vigorously those who attempt marriage with consecrated virgins, whether these consent or resist. On account of the atrocity of this wicked crime, we order them suspended from Communion.

Also, the Emperor Jovinian, in Cod. 1.3:

[C. 3.]

If anyone dares, I shall not say to abduct, but even to attempt marriage with consecrated virgins, let him suffer capital punishment.

Also, from the Council of Châlons-sur-Saône:

C. 4.

The same.

The Council of Chalcedon [cf. C. 36 q. 2 c. 1] records that the holy synod decreed, concerning girls abducted before betrothal, that those who abduct such girls under the pretense of living together with them, as well as those cooperating and living with them, are to be degraded if they were clerics, and excommunicated if they are laymen.

It shows how severely the authors of this evil are condemned that those who merely cooperate with them through counsel and help are struck by so great an anathema. Thus, according to canonical authority, they can in no way presume at law to marry lawfully the abducted girl.

Also, [Pope] Gregory [II, in the Roman Synod]:

C. 5.

Abductors of widows or virgins are excommunicated, along with those helping them.

If anyone abducts a virgin or widow and carries her off as a wife, let him, and those helping him, be anathema, unless he had previously betrothed her.

Also, from the [First] Council of Paris, [c. 6]:

C. 6.

Let him be excommunicated who abducts a widow or someone's daughter without the parents' consent

or by claiming royal exemption.

Let none presume to abduct a widow or anyone's daughter, without her parent's consent, or by claiming royal exemption. If someone does so, he is to be excluded from the Church's Communion and struck by the sword of anathema.



Part 2.

Gratian: These authorities show clearly that an abductor cannot marry the one he has abducted.

But ``abductor'' and ``abducted'' denominate sins, not persons. So, after the sin has been expiated by penance, the terms are no longer applied.

Hence in a certain homily Gregory says:

[C. 7.](45)

Almighty God, when he freely accepts our penance, simultaneous condemns us of error and hides the error.



[Gratian:] Therefore, the foregoing authorities forbid one abducted to marry her abductor until the sin of abduction has been expiated, that is, as long as they can be properly spoken of as abductor and abducted. But, after she is restored to her father's control, and the abductor has done penance for the abduction, they are not forbidden to marry one another if the parents consent.

Hence Jerome says:

C. 8.(46)

The number of types of lawful marriage, and that an abductor can, with her father's consent, marry the one abducted.

One reads of three lawful marriages in scripture [cf. Deut. 22:28]. The first lawful marriage is when a chaste virgin is lawfully given in her virginity to a man (and so on as in the preceding(47)).

The second is when a virgin is seized by a man in the city and joined with him through force. If her father wishes, the man must endow her with as much as the father decides, and then give him the price of her modesty.

The third is when a girl is seized as above, and the father objects. He then takes her from the said man, gives her to another, and endows her. She will be lawfully his.

But the first type of marriage is preferable to the latter two.

Also, Ambrose, in The Defense of David, [viii]:

C. 9.

When one may take an abducted woman in marriage with her parent's consent.

Let the father of a betrothed girl, who suffered forcible intercourse, receive fifty silver drachmas. But she is to remain married [cf. Deut. 22:29].

Also, from the Council of Meaux, [c. 65]:

C. 10.

An abductor and the woman abducted are allowed to marry after penance.

As this enactment is promulgated for all

generally, let anyone who marries a woman he has abducted be separated from the union and subjected to public penance. This is to be done even if he took her with the parents' consent under the guise of betrothal or dowry. Let the abducted woman be lawfully restored to her parents. After public penance has been completed, if their age suggests incontinence, they may be joined in marriage with the parents' consent.

We do not establish this as a universal practice, but (to use the words of Leo the Great) we consider it merely tolerable. If the spouse married dies, the survivor subjected to public penance may not enter a second marriage, unless the bishop permits this as an indulgence to avoid more serious offenses.



Gratian: The authority of the Council of Meaux does not permit the abducted to marry the abductor after penance, but it does permit either to enter lawful marriage after penance, so long as the abducted marries someone other than the abductor. Similarly, the abductor is presumed, after penance, to take as wife someone other than the one he abducted.

If this authority allowed the abductor and the abducted, who are subjected to penance, to marry each other, the end of the capitulum would speak to no purpose when it says, ``If the spouse married dies, the survivor subjected to public penance may not enter a second marriage.'' For then, if either of them died, someone who underwent penance would remain as the survivor. So, this authority does not show that an abductor can take the woman he abducted as wife.

Rather, the Council of Aachen shows that they cannot be joined, even with the parent's consent, for the said council reads:



C. 11.

Not even with the consent of the parents, can abductors have the abducted as wives.

We decree that those who abduct, steal, or seduce women, may not take them as wives, even if they later agree to endow and receive them in a marital way with their parent's consent.

Gratian: This authority cannot be in contradiction to that of Jerome [C. 36 q. 2 c. 8], especially as that testimony uses divine law. Therefore, after penance is completed, an abductor may lawfully marry her whom he abducted, unless the girl's father wishes to take her from the abductor.

[PALEA.

[Cod. 5.4.[5]: Legal discipline does not compel an unwilling son of the family to take a wife. Therefore, as you desire, you may observe the law's command and be free to join in marriage whomever you wish, provided that, in contracting the marriage, your father gives his consent.

[Also, in Cod. 5.4.[20]: The father's consent is required for the union of daughters set apart as dedicated.

[Also, in Dig. 23.2.[23]: Marriages require the consent of all, that is, of those who unite and of those in whose control they are.

[Also, Instit. 11.10 [pr.]: Roman citizens contract just marriage when they come together in accord with the commandments of the law. This applies to women above puberty and males who are potent, whether fathers of the family or sons of the family, provided that sons of the family have the consent of the parents under whose control they are. Civil and natural law allows this only when it is preceded by the parent's command.]



DECRETALS OF GREGORY IX

Book Four

(1234)











DECRETALS OF GREGORY IX




BOOK FOUR




TITLE I

Betrothals and Marriages



C. 1(48)

Matrimony is contracted by consent alone and is not to be invalidated if the customs of the country are not          observed.


From the Council of Trebur.

A certain noble(49) man from France took a noble woman from Saxony as a wife according to the law of the Saxons. He kept her for many years and had children by her. But, as the Saxons and Franks do not follow the same law, he claimed that he had not betrothed her according to his own law, that is, he had not taken her and given her a dowry according to the law of the Franks. So he sent her away and took another wife.

As to this, the holy synod decreed that he should be subjected to penance as a transgressor of the Law of the Gospel, be separated from his second wife, and be made to return to the first.



C. 2.

Betrothals for a future date are dissolved if the betrothed themselves dissolve them, even if they were sealed by       oath.


Innocent II to the Bishop of Exeter.

Moreover, those who have given their word simply and without any condition, or have taken an oath to contract marriage, should be warned, carefully exhorted, and induced in every way to observe their pledged word or the oath which they have given and to marry each other as they have promised.

If, however, they refuse to take each other it seems from the example of those who contract partnership under oath that those who had pledged their word may, out of forbearance, both be allowed afterwards to release each other, lest something worse happen, such as a marriage between those who hate each other.


C. 3.

If one over the age of seven takes a prepubescent wife of less than seven and transfers her to his house, such a contract gives rise to the impediment of public propriety.     So the literal text. Panorm.


Pope Eugene.

A young man, who took a girl not yet seven years old in marriage, appears not to have consummated the marriage he entered, due to age or some other human disability.

In doubtful matters, we are to follow the safer course. So, because she was called and possibly is his wife, we command you that he be divorced on the grounds of ecclesiastical propriety from the girl's cousin, whom he afterwards took.


C. 4.

The impediment of public propriety arises from betrothals    contracted between those with consanguinity.


Alexander III to the Bishop of Pavia.

It has come to Our Apostleship's hearing that, since H. the son of Alberigo, a citizen of Pavia, wished to give his daughter as wife to one of L.'s children, he swore that, if by chance he whom she had betrothed could not take her, he would join the girl in marriage to his son by a former wife. After betrothal to the first son was contracted, certain men come to the Church and affirmed under oath that there was a blood relationship between them.

So H. tried to bestow the woman on the other son, as he had vowed. But, as it is written [cf. Lev. 20:21] that a brother cannot have his brother's betrothed, we command Your Discretion by apostolic decree: Forbid him to carry out his intention, which is contrary to the intention of the canons. After first warning him, compel him by ecclesiastical sanction to do penance for his unlawful oath.


C. 5.(50)

If one betrothed for a future date separates before intercourse, his betrothed may freely contract marriage with another. But if it was her fault that the marriage       was not consummated, she is subject to penance.


The Same to the Archbishop of Palermo.

As to those who promise with under oath to take certain women as wives and then, unbeknownst to the women, leave the country and move elsewhere, we inform you that these women are free to enter vows with others if this is far as things have gone. They are, however, to receive penance for perjury if it was their fault that the marriage was not consummated.

If anyone . . . . (cf. X 4.3.3 § 1).


C. 6.

Not all force impedes a contract of matrimony. So for      this title.


The Same to the Bishop of Padua.

As to the woman who was given to a husband against her will and detained, since there are different levels of force, and you did not inform us if she later consented, we cannot give you a certain reply.

Those who are . . . . (cf. X 4.16.3.)



C. 7.

If anyone entering matrimony contracts using unclear language, the common meaning of the words is to be        followed.


The Same to the Archbishop of Canterbury.

In the letter you sent concerning the marriage case of a certain young man by the name of R. and Mary, the daughter of Gilbert of St. Leo, Your Solicitude tells us what you discovered examining the affair. But, since the parties are absent, we cannot fully investigate the truth. Nor can we remit the case to you because the woman party to it has appealed to our hearing. We have thus committed the case to our venerable brothers, the bishops of Winchester, Hereford, and Bath.

Therefore we command Your Fraternity by apostolic decree: Compel the parties to present themselves at these bishops' summons, and to observe inviolably what they decide, without contradiction or appeal.

You asked us at the end of your letter concerning what should be done when a betrothal is contracted between two persons, and one does not understand what the other proposes. We reply that the judge should investigate if those contracting matrimony had sufficient understanding and age to do so. Once this is known, if one did not understand what the other proposed, recourse is to be had to the common meaning of the words. Then each is to be compelled to take the words uttered in the sense usually given them by those who correctly understand them.

You have asked whether an appeal should be referred when it is clear that this is a pretext for the commission of adultery or some other crime. We reply briefly to your question: Where there is a notorious intention to commit adultery or some other crime, we will refuse to accept it if the appeal lodged is transferred to us. For we refuse to promote incest or adultery.





C. 8.

The impediment of public propriety exists between a betrothed woman and her betrothed's blood relatives, and it is a diriment impediment to the contracting of             matrimony.


The Same to the Bishop of Biscaglia.

The other's betrothed, especially if she is close to marriageable age, can in no way join that man's blood relatives in marriage.


C. 9.

If a man and a woman promise to take each other as husband and wife at a certain time, this is a contract of matrimony in the present tense. Thus for this text, which    is a notable case.


The Same to the Abbots of St. Edmund's

and Ramsey.

The woman C. informs us that Andrew took an oath, before a priest, deacon, and other clerics and laymen called together for this, that he would henceforth treat her as his wife and be faithful to her as to a wife. She swore to Andrew that she would treat him as her husband and be faithful to him as to a husband. After this, they lived together in the same house for a long time and had children. But later, A., contrary to his oath, abandoned her and his children by her and stopped living with her.

As no one can lawfully [cf. Mt. 19:9] send away his wife without a proven excuse of fornication, and even then he must reconcile himself to her or be continent while she lives, we will not permit Andrew to break the requirements of his oath.

By apostolic decree, we command Your Discretion: Diligently investigate the truth of the matter and, if you find it to be as set out above, Andrew, taking counsel for his salvation, is to put away the woman he now has, return to his own wife, and treat her with marital affection. After giving warning, compel him under ecclesiastical censure to expiate his guilt with fitting penance.

If, perchance, he refuses to heed your warning, bind him and this latter woman under the bond of excommunication, barring every defense or appeal. Command all to avoid them as excommunicate until they make satisfaction.


C. 10.

He who has sworn to contract marriage with a woman should be compelled by ecclesiastical censure to contract  it if there is no impediment.


The Same to the Bishop of Poitiers.

From the letter of our venerable brother Bishop Silvan, we gather that two noblemen of his bishopric, to wit, G. of Moustier and B. of Mortain, had sons and daughters below the age of puberty and, hoping to make peace between themselves, they reciprocally agreed to join these in mutual marriage. The fathers and children promised to do this under oath. Among these, G. swore on more than one occasion with his father's consent to take the other man's daughter as wife.

He now wants to make other vows, but the bishop intends to compel him to carry out his oath. He has appealed to our hearing, and the other party has sent us her representative. He himself has not come nor sent any response on his behalf.

Because it is perilous for G. to act contrary to his vow, we order by apostolic decree that Your Fraternity summon both parties before you as they have requested. After having heard and considered their arguments more completely, you may admonish him as seems proper. Then, if he does not heed your warnings, you may compel him by ecclesiastical censure to take her as a wife and treat her with marital affection, unless reasonable cause prevents this.

If, indeed, he wishes to argue a reasonable cause, hear it with all diligence and zeal, and bring it to term in accord with the canons, barring appeal. On the other hand, if after lawful warning he holds your decision in contempt, you may impose the bond of excommunication on both him and his father, if the latter has dared to support him in his crime. You may interdict all divine services in their territory, excepting baptisms of children and penance for the dying.





C. 11.

A father is to be compelled by ecclesiastical censure to return this son's wife, whom he has detained or is detaining.


The Same to the Archbishops, Bishops, and other Prelates of England.

We think it is not unknown to you how, because of the discord that arose between him and his sons by reason of his sins, the illustrious Henry, king of the English, detained their wives, [the daughters of our most beloved Son in Christ, Louis, the illustrious king of the French.] The king of the French, [and the sons of the king of England,] asked us to entreat his daughters' father-in-law to return them.

Therefore, thinking it just and decent for husbands to seek their wives, and readily willing to grant this request of the [king of the French and his sons-in-law, not only in matters where the responsibilities of our office bind us], but in everything not contrary to justice, we have zealously and carefully warned the king of England. We have issued an order to him that, after warning by [our venerable brothers,] the archbishop of Tarantaise and the bishop of Claremont, and [our beloved son] the prior of the Carthusians or the prior of Mont Dieu in his absence (or any two of these, if three cannot come), he should not delay the return of his sons' wives beyond forty days of the receipt of our letter.

If he does not return them to their husbands within the prescribed term, we command by apostolic decree that the whole province where they have been taken and are being held shall suspend all the Divine Offices, except the Baptism of children and Penance for the dying, as long as they are there and have not been returned to their husbands.

Therefore, by apostolic decree, we, to the full extent of our ability, command [and order as a command] all of you that you carefully warn the king of the English and induce him with exhortations to return them. Explain to him that it is not less expedient for him to restore them than for their husbands to receive them. If he does not return the wives to his sons at your command and warning within the fixed term, do not celebrate or permit anyone to celebrate the divine offices, excepting baptism of children and penance for the dying, in any of your provinces where they are taken or held, as long as they remain there, barring all appeal [and resistance].

Know for certain that, if anyone, contrary to our expectations, should attempt to contravene our edict, they will suffer the due penalty instituted by the Lord [cf. Mt. 18:17] for their temerity and transgression.


C. 12.

The testimony of a single individual, who asserts there is an impediment, impedes the contracting of matrimony      when not promised under oath.


The Same to the Bishop of Sant' Agata de' Goti.

Furthermore, as to the woman sought by a man whose blood relative claims to have slept with her but refuses to confess this publicly because he fears the woman's power, we reply thus to Your Providence: Unless a vow has been made, you may strictly prohibit the celebration of this marriage, lest that occasion something more evil.


C. 13.

If a woman contracts marriage with a man against her will, without later consenting to it, the marriage is to stand if she later marries another. So this is commonly summarized. Following this interpretation, it would be an open question whether matrimony contracted out of fear is null by law. This is not clearly implied by the literal   text.


The Same to the Procurator and Canons of Sora.

Coming to the Apostolic See, Mariota, the bearer of this letter, humbly testified to us that in youth she loved a certain young man, [E. by name,] so much that they both swore a contract of matrimony before three witnesses. Because her parents did not know this, they gave her as wife to a certain other man, although she resisted and objected. She avoided this man so that he could not have any relations with her.

Since there was public testimony that the first man had vowed to her and had relations with her, the Bishop of Sora then summoned them, and when it was discovered and proved that they shared a close blood relationship, such that they could not and should not be married, he separated them from each other.

Furthermore, since, when that case concluded, she still refused to consent to the man to whom her parents had given her, he took another as a wife. She then publicly married a certain T. before the Church. At length, after she had a son by T., his father, seeking an excuse for a divorce, objected that she could not have his son as husband because she had earlier been betrothed to another, who has now died. Because we cannot trust his assertion and cannot pass over this matter in silence, we have decided to remit this to you.

By apostolic decree, we command Your Discretion to investigate as completely as possible the truth of this matter and, if the woman was separated from her first husband by the Church's judgment, and T. took her as wife without the Church's objection, and the man whom her parents forced her resisting and objecting to marry has died, compel T., after warning, to receive Mariota without any delay and strive to love her as his proper wife and treat her with marital affection.

Otherwise, you are to subject him and the woman he later took to excommunication, along with his father, should they resist this. And you are to cause that sentence to be observed inviolably until worthy satisfaction is made.



C. 14.

If there is danger that violence will be used on a girl whose marriage is subject to legal action, the judge should provide her with a safe and decent place to stay until her case is terminated. Thus for this text, which is     often invoked.


The Same to the Bishop of Pavia.

Since fear and compulsion void consent, all sources of compulsion must be removed when someone's assent is required. Matrimony is only contracted with consent, and when this is to be examined, the one whose intention is under investigation must enjoy full security, lest fear make that one say that someone that one hates is acceptable, thus bringing about the usual result of nuptials against one's will.

Therefore, by apostolic decree, we command Your Fraternity that you provide for the girl concerning whose marriage an investigation has been initiated between Siderio and Cane, your citizens. She is to be decently maintained in the house where you have placed her so that she has nothing to fear, until the case is finished at its canonical conclusion and an uncontested sentence is given for execution.


C. 15.

Betrothal for a future date followed by intercourse may not be dissolved by a betrothal in the present. Others hold that a betrothal in the present will be contracted, unless the result of fear such that it would cause a steady     man to fall.


The Same.

Coming to us, G., the bearer of the present letter, has recounted for us that he took into his house a certain woman from whom he had a child and to whom he pledged his word before several people to take her as wife. Meanwhile, he spent the night in his neighbor's house, and during the night the latter's daughter lay with him. The girl's father, when he found them together in bed, forced him to betroth her using the present tense. In our presence he has asked us which woman he should keep, but he has not told us whether he had relations with the first after pledging his word to her.

Therefore, we order that you diligently investigate the truth of the matter, and if he had relations with the first after pledging his word, make him remain with her. Otherwise, unless he was compelled to betroth her through fear such that it would make a steady man fall, make him keep the second as his wife.





C. 16.

One who has sworn to contract marriage with a woman, if he wishes to enter religious life, ought first to contract marriage to fulfill the vow, and then he may enter a         monastery before having carnal intercourse.


The Same to the Bishop of Exeter.

The commission [cf. B 4.1.4].(51) (And following:) Your Fraternity has indicated to us that a certain literate and noble man, to whom his father's inheritance has devolved, gave his word before others to contract matrimony with a certain noble woman. He affirmed with an oath upon the Holy Gospels that he would contract with her, using the present tense, within two years.

Now he hopes for a privilege to bear the fruits of a better life and he requests Your Prudence's counsel as to whether he may lawfully receive the habit of a monastic religious order rather than contract marriage. For, if he had contracted, he could within two months enter a stricter religious life even if she were unwilling, in accord with the what was established by the old canons, which have been renewed though our enactments.

As Your Fraternity has been led to consult us on this, we reply to Your Fraternity this way: It would be better for him to observe the requirements of his vow and contract with the first woman. Then, if he chooses, he can later enter a religious order, provided that there was no carnal intercourse after the first betrothal.


C. 17.

One who has sworn to contract marriage should be urged rather than compelled to contract it. Thus following      the literal text.


Lucius III to the Bishop of Rapolla.

Your Fraternity has asked us under what censure should be imposed on a woman who neglects the requirements of her oath and refuses to marry the man whom she swore under oath to marry.

You have also asked whether a woman whose husband has polluted her mother's bed can make other vows, in accord with her mother's wishes, while that husband is alive.

We answer you briefly: Since by law marriages must be free, the woman who swore that she would marry, should be urged rather than compelled, especially since [this kind of] compulsion often has a problematic outcome.

She whose husband committed adultery and incest with her mother should not have carnal union with her husband, nor can she enter another marriage while he is alive.




C. 18.

Legal action concerning matrimony does not impede         contracting a second marriage if the first was null.


Urban III.

Since the Apostolic See, over which albeit unworthy we preside, instructs the entire ecclesiastical order, it is fitting and consonant with reason that, whenever there is some doubt about the business of the Church, recourse should be made to its judgment for a decision.

We understand that there is before you a marriage question concerning a certain bailiff of N. and his wife, and that witnesses have been produced, and their testimony diligently examined. Before the witnesses had been heard, the same bailiff returned to his own people and publicly announced that a decree of divorce had been promulgated by ecclesiastical judgment between him and his wife. Having put forward this falsehood to everyone, he presumed to unite himself with another woman, who was ignorant of the facts.

Later, a letter was sought from the Apostolic See concerning the first marriage, and the judges delegate gave a decree of divorce. But because the bailiff and the woman he later took consented to each other while the lawsuit concerning his first wife was pending, Your Fraternity was led to consult us on whether they are to be admitted to matrimony.

By the authority of the present letter, therefore, we reply to your question in this way: A fitting penance should be imposed on the man, and during the period of this penance he is to be forbidden carnal intercourse. Afterwards, he can continue in marital union.

[You have asked . . . . Cf. X 4.5.5.]


C. 19.

A wife who does not know if her husband is dead cannot contract marriage as long as she has no information about    her long absent husband.


Clement III to the Bishop of Saragossa.

You have asked before us what should be done by you concerning certain women in you diocese whose husbands were absent because of captivity or pilgrimage. They waited more than seven years and could not discover whether they were alive or dead, although they had tried diligently to find out. Then, because of their youth or weakness of the flesh, they could not be continent and sought to unite with others in matrimony.

Since the Apostle says [cf. 1 Cor. 7:39], ``The wife is bound to her husband as long as her husband is alive,'' we reply thus to your question: No matter how many years this condition persists, they cannot pass canonically to another marriage so long as their husbands are alive. Nor may you permit them by the Church's authority to contract until they are certain that their husbands are dead.

[Given at the Lateran.]


C. 20.

Contracting marriage with a sinful woman who wishes to    amend her life brings remission of sins.


The Same.

Among the works of charity which the authority of the sacred page proposes for us to imitate, as the authority of the Gospel [Mt. 18:15] testifies, not the least is to recall one erring from the path of error, and especially to invite women to live chastely and share a lawful bed, who are living voluptuously and indiscriminately admitting whoever they wish to commerce in their flesh. Taking heed of this, we decree, by apostolic authority, that all who bring public women out of brothels and take them as wives do something which merits the remission of their sins.

[Given at Rome in St. Peter's, in the first year of our pontificate, 29 April 1198.]


C. 21.

Marriage contracted under force will become valid through voluntary cohabitation. Thus for this text, which    is invoked daily.


The Same.

As to what you have said to us in your letter concerning one of your parishioners whose step-father united her in matrimony to a certain German, we reply as follows: Although she was still eleven years old and was given to him unwilling and objecting, she did live with him afterwards for a year and a half. So she appears to have consented and should be compelled to return to him.

Nor should any witnesses named by the woman be heard to prove that she did not consent to him, because such a long delay excludes that kind of proof.

Therefore, we command you to make no delay in compelling each by ecclesiastical censure to treat the other with marital affection. Appeals are forbidden, unless perchance they both wish to enter a religious order. Penance is to be enjoined on them because both were involved in other unlawful sexual relations.

[Given at the Lateran.]




C. 22.

A betrothal for a future date, even under oath, is dissolved by a later betrothal in the present, but not by a    second betrothal for a future date.


Innocent III to the Bishop of Ferento.

We understand from Your Fraternity's letter that your parishioner, L., swore that he would take the woman P. as his wife, swearing in the hands of P.'s father, who swore that he would give her to him as a wife. Because of the woman rather than the man, they never underwent the matrimonial ceremony. Four or five years passed; L., as his blood relatives assert, betrothed a woman E., using the present tense. Therefore, P.'s brother has raised this question before you. You ask us to respond and tell you what to do about this.

We reply thus to your request: If you determine that L. betrothed the woman P. in the future tense and E. in the present tense, fitting penance should be imposed on him for breaking his first promise, unless he had specified a definite time in his oath before which he would take P. as a wife and he was not responsible for not consummating the marriage with the agreed time. You may judge the marriage contracted second lawful and compel him, if necessary by ecclesiastical sanction, to observe it, unless some other obstacle impedes it.

If, perchance, he contracted betrothals with both using the future tense, you may compel him to keep his first oath, as it was lawfully made, and enjoin penance on him for the second. If you are uncertain about these matters, you should hear the case until you have sufficient information.

The testimony about spiritual co-parentage that you have sent to the Apostolic See does not bear on the case, because neither contracting party is the person through whom their relatives contracted the relationship of spiritual co-parentage.

[Given at the Lateran, in the first year of our pontificate, 25 February 1198.]


C. 23.

The mute, the deaf, and all not prohibited may contract marriage.


The Same to the Bishop of Arles.

Since at the Apostolic See, over which albeit unworthy we preside, the entire ecclesiastical order finds instruction, it is fitting and consonant with reason that whenever there is a doubt about various matters, recourse should be had to its judgment, because, according to the Lord's arrangement, it merits pre-eminence among all the churches. You have rightly asked us by messengers and letter whether the mute and the deaf can be joined in matrimony.

We answer Your Fraternity thus concerning this: The law specifies what is prohibited in contracting marriage; thus whoever is not prohibited is consequently permitted. Matrimony requires only the consent of the parties whose union is in question. Thus it seems that, if such persons wish to contract, this cannot and ought not be forbidden, since they can declare by signs what they cannot say with words.

[Given at Rome in St. Peter's, 15 July 1198.]


C. 24.

The insane cannot contract marriage.


The Same to the Bishop of Vercelli.

Our beloved son R., a soldier of Alessandria, has declared before us that he joined his daughter Rufina in matrimony to a certain man, Opizo Lancavecla, not knowing that Opizo was insane. Hence he humbly asks us to advise him and his daughter.

Since this woman cannot live with a husband who suffers from ongoing insanity, and since he will be unable to give lawful consent because he is out of his mind through insanity, by apostolic decree, we command Your Fraternity that you make a complete investigation of the truth, and if the matter stands thus, separate these persons from each other, forbidding all delay through appeal.

[Given at Rome in St. Peter's, 28 December 1205.]


C. 25.

Lawful consent alone will contract matrimony, but verbal expression is required as proof. But note that other signs have the same effect. Thus according to the inter-          pretation proposed by Panormitanus.


The Same to the Bishop of Brescia.

Your Fraternity [cf. X 4.13.10. And following:] You have asked further instruction as to whether marriage can be contracted by words alone, and by what words, since some men doubt that something spiritual can be contracted by words alone.

We therefore reply to your inquiry as follows: Marriage is truly contracted through the lawful consent of a man and a woman. But the Church requires words in the present tense that express consent.

The deaf and the mute can contract marriage through mutual consent without words; children under lawful age cannot contract by words alone, since they cannot consent.

[Given at Rome . . . . 1206.]




C. 26.

If a man uses ambiguous words to deceive a woman and then knows her carnally, judgment is to be given for the marriage in the judicial forum, as well as in the penitential forum. Thus according to the correct and        common interpretation.


The Same.

Your Fraternity would consult us [cf. X 4.14.7.]. (And following:) Consequently, you have asked this: A certain man could not convince a certain woman to have carnal intercourse with him unless he betrothed her first. Without any solemnity and without anyone being present, he said to her, ``John betroths you.'' His name was not John, but he pretended his name was John. He did not believe this was a marriage because that was not his name, and he did not intend to contract it, but only to have carnal intercourse. Was marriage celebrated between the said persons, since the woman consented and consents to him, but he did not and does not consent and did not do anything other than have sex with her, as said above?

On this we give you this answer: Since the said man betrothed the said woman in his own person using another pretended name, and they then had carnal intercourse, it appears that the presumption is for the marriage. But you have expressly written us that he did not intend or consent to take her as wife (although we cannot see how you would know this).

Nevertheless, for the sake of explaining the law, we say this: If he truly did not intend to take her as wife and never consented to her, then decision for the marriage should not be given on account of their actions, since there was neither the substance of a conjugal contract nor the form for contracting marriage. For, on one side, there was only a fraud, entirely lacking the consent, without which nothing can create the conjugal bond.

[You asked third . . . . Cf. X 5.12.19.

[Given at the Lateran, in the fourteenth year of our pontificate, 13 February 1212.]


C. 27.

The accusation of one trustworthy individual concerning consanguinity, which is rumored and scandalous, impedes   the contracting of matrimony.


The Same to the Bishop of Beauvais.

Since in your diocese [cf. X 3.30.30]. (And following:) It sometimes happens that those wishing to contract matrimony publish the banns (to use your words) according to the customs of the Gallican Church, and no relative publicly appears to contradict them, although rumor has it that there is an unpublished impediment of relationship. To remove cause for suspicion, oaths are to be given by their parents concerning the relationships of the parties contracting.

You have rightly asked us what should be done in cases of this kind. To this we reply as follows: If a responsible trustworthy person informs you that those to be united in matrimony are related to each other and tells of rumor or scandal, or if you have ascertained this yourself, not only should you not accept oaths offered spontaneously by the relatives, but you should compel them by warning to desist.

Or, to dispel this kind of rumor, let the relatives' oaths be taken according to your discretion's judgment. But if the one informing is not of the proper character, or cannot tell you of rumor or scandal, you can admonish parties to refrain from contracting, but you should not compel them not to.

[If someone appears . . . . Cf. X 4.18.6.

[Given at the Lateran, in the fifteenth year of our pontificate, 29 October 1212.]


C. 28.

A wife who denies that she has contracted matrimony should not be believed if her husband testifies to the contrary, unless she proves that she contracted through       fear that would cause a steady man to fall.


Honorius III to the Bishop of Bergen.

We briefly answer your question: When women come according to custom to the church door to be blessed with their betrothed and there protest, saying that they never consented to marry them, it is not necessary to have the betrothed lawfully prove the contrary. The women's simple assertion should not prevail against lawful competent witnesses.

A hearing should rightly not be denied to those who, after receiving the blessing, immediately fled from their betrothed before carnal intercourse occurred and assert that they never truly consented to them. If they, compelled by the fear inflicted on them, offered words of consent while mentally refusing, you should carefully inquire about the fear inflicted. If the fear inflicted was such as would cause a steady man to fall, they deserve to be heard.


C. 29.

There is to be freedom in matrimony and betrothal; thus    a penal stipulation does not bind.


Gregory IX.

A woman, Gemma, informs us that, when her daughter T. contracted marriage with C., B. of Alfi, tried to extort from her a penalty stipulated by agreement to be paid by the party breaking the agreement. This was because a betrothal had been contracted between his son P. and this girl when both were under seven years of age.

Since marriages should be free, and such an agreement is properly disallowed on account of the penalty set, we command you, if this is the case, to compel B. by ecclesiastical censure to desist from extorting this penalty.


C. 30.

Betrothal for a future date becomes matrimony through subsequent carnal intercourse, but not through a mere attempt at carnal intercourse. Thus for this, as well as C.   32 below, on the same topic.


The Same to the Bishop of Le Mans.

The man who gave his word to contract marriage with the woman M. and followed it with carnal intercourse is bound to return to her, although he took another woman before the Church and knew her.

The first marriage is to be presumed, and against this presumption arguments are not to be entertained. From this it follows that a marriage which in fact came later is not true and is considered void.



C. 31.

A betrothal in the present is not dissolved by subsequent matrimony, even if consummated by carnal intercourse; but betrothal for a future date, even under oath, is            dissolved by a subsequent betrothal in the present.


The Same.

If lawful consent in the present occurs between a man and a woman, so that one receives the other with mutual consent expressed through the customary words by each saying ``I take you as mine,'' and ``I take you as mine,'' or other words expressing consent in the present, whether there was an oath or not, it is not lawful for either to make other vows. If they do so, and actually contract marriage, even when followed by carnal coupling, this must be put asunder, and the first preserved in force.

But if they exchanged only a promise for the future, each saying to the other, ``I will receive you as mine,'' or similar words, and then another man betroths the woman in the present tense, the second marriage cannot be put asunder because of this betrothal, even if the woman and the first man exchanged oaths relating to the future, as we have said. But penance is to be enjoined on them for breaking their word.



C. 32.

Attempted intercourse does not change a betrothal in the    present into marriage.


The Same.

A young man did not have carnal intercourse with the one he betrothed using language in the future tense, although he often attempted this. He later contracted with another using the present tense.

He ought to keep the second as his wife rather than the first, because there was no true marriage with her apart from the form of the contract, nor was there a presumptive marriage, since his attempts were not effective.



TITLE II


Betrothal of the Prepubescent



C. 1.

A father contracts a betrothal for a minor son; when he      matures, it does not bind unless he consents to it.


Hormisdas to Bishop Eusebius.

Your Fraternity asked us whether a father who wants to contract marriage for his adult son can do this against the son's will. We say that he cannot if the son does not consent in some way.

But if the son is not yet an adult, and his will cannot be discerned, his father may give him to whomever he wishes in marriage, and when the son reaches maturity, he must fulfill this entirely.


C. 2.

Two prepubescents, or a prepubescent and one older, are    not to be married, except for the sake of peace.


Pope Nicholas.

Where there is no consent [cf. C. 30 q. 2 c. 1]. (And following:) By the authority of this decree, we strictly prohibit for the future that either or both, who have not arrived at the age determined by the laws or the canons, be joined in marriage; unless there is a very urgent need that the union be tolerated for the sake of peace.


C. 3.

One reaches majority for marriage when one has the          bodily capacity and can procreate children.


Isidore.

Pubescents are called from ``pubis,'' that is, they are named from the pudenda of the body when these places first bring forth soft hair.

Some think puberty depends on age, that is, when a boy has completed fourteen years he is pubescent, even when he becomes pubescent very late. But he certainly is pubescent when he shows puberty from the appearance of his body and is able to procreate. Girls are pubescent who can bear during the years of puberty.



C. 4.

The impediment of public propriety does not arise for minors below the age of seven, unless there is consent after the age of seven, whether by a prepubescent or one in puberty. Subsequent affinity dissolves preceding          betrothal for a future date.


Alexander III to the Bishop of Hereford.

We have received Your Fraternity's letter from whose import we gather that a certain man, a parishioner of yours by the name of A., when he was of mature age, betrothed a certain girl in her cradle. With the passing of time, A. had relations with the girl's mother and took her as wife. You wondered whether this marriage should stand and so asked our counsel about it.

To your question we reply as follows: If the man took the girl's mother as wife before the girl had completed her seventh year, you may dissolve that marriage and permit the man liberty to keep the woman as his wife. Such betrothals made in the cradle are null.

But if the man took the girl's mother as wife after the girl had completed her seventh year, do not hesitate to promulgate a decree of divorce between them, since betrothals after this age are approved by custom, nor may you permit the man to take the mother's daughter as wife.



C. 5.

Betrothals void through defect of consent do not create an impediment of public propriety. Other betrothals do,        even if they have been lawfully dissolved.


The Same to the Archbishop of York.

There has come before us a nobleman W., the son of G., with a letter from you. From its import we gather that he had betrothed a certain nobleman's daughter while she was a minor. She did not consent to this later, and before she had reached marriageable age, a divorce was decreed between them. Time then passed, the girl's father died, and W. united himself in marriage with her mother.

You refused to permit this act, and so solicitously warned him to send her away. Then, because he refused to heed your warning, you imposed on him the bond of excommunication. At length, you received from him a pledge to come before us and strictly observe whatever we decreed on this matter. Then you, at our command, pronounced him free and sent him to us with your letter.

In our presence W. has explained to us that he had betrothed that girl when she was under the age of seven, and that later, before she came to marriageable age, she absolutely refused to consent to take W. as husband. So, she came before you, with W. and her father, in whose power she still was. When you heard from the girl's own mouth and learned from her and her father that she did not want W. as her husband, you immediately pronounced in plenary synod that he was publicly free from this betrothal.

Some years passed, and the girl's father died. Then, our most beloved son in Christ, Henry, the king of the English, gave the girl's mother to W. as his wife. In order to quiet discords that had arisen between his blood relatives and the woman's blood relatives. W. received her and solemnly betrothed her. Then, he took her in marriage without opposition from the Church and procreated children from her. The girl herself was married to another man.

Although your letter says that this girl was a minor when the betrothal occurred, yet it makes a difference whether she was a minor close to the age fit for marriage or was under seven. So we by apostolic writing command Your Fraternity to diligently investigate the truth of the matter. If you determine that the girl was not yet seven when she was betrothed to G. and afterwards did not consent to him, and that you freed G. from this betrothal, command that the marriage between G. and the girl's mother to be observed inviolably. Announce that their offspring are legitimate, for, as Your Discretion is not ignorant, betrothals and marriages cannot be made before the age of seven, especially if consent afterwards is not given.

If the girl had completed her seventh year before [this] betrothal, it would rightly seem indecent for the man to take a mother whose daughter he had betrothed, even though the man was rightly freed from his betrothal to the daughter because she would not consent to him.

But, if it seems to you that by his remaining with the girl's mother, the disputes that arose between their blood relatives which are now quieted will be prevented from breaking out again, you can overlook this and tolerate it with equanimity. If, he has taken her as wife with the Church's permission the children he has from her may not be prohibited from inheriting from either their father or mother.






C. 6.

If a prepubescent, betrothed and handed over, asks permission to marry another who is in majority, she is not to be heard if the man swears that he has known her. Nor is she to be heard if she has not reached majority, but has been shown to be close to puberty. Betrothal with a prepubescent over the age of seven gives rise to     the impediment of public propriety.


The Same to the Bishop of Norwich.

Your letter reports that a certain girl below marriageable age had been promised as wife to a certain man, and that she was given, her parents asserting that she was of lawful age. when she arrived at marriageable age she asked permission to marry another, asserting that she had never consented to this husband.

The man sets out to the contrary that, although the girl may not have reached her twelfth year when she was given to him as wife, she was close to it, because he knew her by carnal intercourse. She says that she did not have intercourse with the man. Hence you have asked us whether she can marry another.

We reply to your question as follows: The Decretum [C. 33 q. 1 c. 3] explicitly says that, if a husband claims to have known his wife, and the wife denies it, the man is presumed to be telling the truth. Therefore, the man, who says he knew this woman, is to be believed if he testifies to this under oath.

If, being around eleven or twelve, she was almost of age, and was betrothed with her own assent at the will of her parents, was blessed, and was known by the man, she ought not to be separated, especially since her parents claimed that she was of lawful age.

But, if the girl was betrothed below marriageable age or close to that age, and blessed and given, it is not lawful for the man who betrothed her to take any of her blood relations as wife. For it is not right for one betrothed to join with his betrothed's blood relations [in marriage].




C. 7.

If those older than seven contract betrothal, neither can break it before puberty. So for the first. The one under puberty can later take another. So for the second. But, if at the time of contracting one has already reached puberty, that one may not break the betrothal, although      the other may. So for the third.


The Same to the Bishop of Bath.

When a betrothal is contracted below the age fit for marriage, and one or both object before reaching the age for contracting marriage and demand to be separated, such are not to be heard.

But if the same betrothal had been contracted when one had reached puberty and the other was still below it, and the minor objected after coming of age and refused to consent to the other, they can be separated by a decree of the Church.

But a woman who has reached marriageable age and marries a man not yet of age for contracting marriage cannot later reject or divorce him since she has already consented to him, unless perchance the one she married absolutely refuses to consent to her after he reaches lawful age.


C. 8.

Prepubescents contracting betrothal may not be separated before puberty, but after puberty they may if they reject     the betrothal, unless they have had carnal intercourse.


The Same to the Same.

Your Discretion has asked us whether those joined under the name of marriage, before marriageable age, or before one of them arrived at an age fit for marriage may lawfully withdraw from the marriage.

We reply to your inquiry as follows: By the authority of the Holy Fathers, those below marriageable age cannot give conjugal consent and so must wait until lawful age. Then the marriage will either be confirmed or, if they do not wish to stay together, they will be separated, unless they have already had carnal intercourse, because this can sometimes occur before puberty.

But if the same betrothal . . . , as in the previous capitulum.


C. 9.(52)

Minors capable of matrimony are bound by the contract    of matrimony, unless they were coerced.


The Same to the Archbishop of Genoa.

Some are betrothed while minors and are given and joined in marriage, but, with the passage of time, they seek a divorce, alleging their minority or the force applied to them by parents.

To you inquiry about this in your present letter, we reply: If they were so near to that age that they could have each other by carnal intercourse, they should not be separated from each other by reason of minority if one has consented to the other, for their malice will supply for age.

But, whatever their age, they can excuse themselves because of the force inflicted on them, unless they gave consent after being forced.

[And that . . . . (Cf. X 2.23.11.)]


C. 10.

A contract before puberty, even with attempted carnal       intercourse, does not create matrimony.


Urban III to the Bishop of Le Mans.

We have received, transmitted to us by Your Fraternity, testimony in a marriage case between a young man H. and a woman G. Having diligently inspected the testimony, and more fully understood it, it plainly shows us that the young man had not reached his twelfth year when he took G. as wife. And although, as both confess, he attempted to have her sexually, yet the woman believes that she remained a virgin.

When he arrived at the age of fourteen he left the woman. Now that he is seventeen, she wants to claim him as her husband. The man at seventeen refuses to receive her. You did not move to give sentence before consulting us on this case.

Therefore, to your question, we reply as follows: If the woman cannot prove by competent witnesses that after the age of fourteen, or at the end of his fourteenth year, the young man consented to her, you can and ought to free him from the woman's claim, having received his oath that, when he came to lawful age, he did not consent to her as his wife. You ought then to grant both permission to make other vows.


C. 11.

If an unwilling adult contracts betrothal with a minor, she     is not bound to take him until he reaches adult age.


The Same to the Archbishop of Pisa.

From Your Fraternity's letter we gather that a certain girl of twelve was sworn and betrothed to a certain boy of nine or ten. With the passing of time, by the will of her parents rather than her own, as she asserts, she was taken to the home of the boy's father, and there, protesting and resisting, as you say you have heard from her lips, and forced by the arguments and the threats of the parents, she stayed for a year or more. Then she left and returned home.

Admonished by her mother, and later by you, as you assert, she completely refused to return to him, asserting that she did not, and still does not, want him as a husband. She now asks permission to marry another. The boy, as you letter says, had not yet reached the age of fourteen, nor did he ever have access carnally to the girl.

Therefore, we reply to Your Discretion as follows: If the girl is warned zealously by you to wait until the boy completes his fourteenth year of age, and will not wait in accord with your warning, you may, by our authority, give her the liberty and permission to take another man as husband, in accord with what has been stipulated.


C. 12.

Betrothal contracted with a minor under seven, is validated by mutual cohabitation after the age of seven and creates the impediment of public propriety. It is        dissolved, however, by a marriage in the present.


Clement III.

We gather that in your diocese two children, William and Wilhemina, were joined in marriage, the boy being six and the girl seven, and they remained together for three years. But then the girl's father took her from her betrothed and joined her to another man by the name of M., with whom she remained quietly for seven years. He then abandoned her because he believed that she had another husband, the man to whom she was first betrothed.

But the first betrothed, reaching the age of discretion, sought permission from your predecessor P. to contract with another. He took a certain S., the first's cousin, as wife. Although he stayed with her for some time, he did not know her carnally, as he admits, although she asserts that he did.

Wilhemina's father, when he saw her abandoned by her second husband, used force to compel William, whom she had first betrothed, to put away S. (the father's niece) entirely and to return to his betrothed Wilhemina. As it is reported, he then cohabited with her for two years.

You ask us to tell you what to do in this matter. Therefore we briefly reply: Their immature age being an impediment, there was no marriage between William and Wilhemina. After she married another, he could take another as wife, but he took S., who was the cousin of the woman. Whether he had known her or not, he could not live with S. because of the impediment of public propriety. Nor should he return to the first, because she was lawfully joined to another.

(And below:) Since the husband is the head of the wife [1 Cor. 11:2], and William says that he had not previously know S., as said above, he can take another as wife if he wishes, and S. can be joined with a lawful husband. But, after their separation, penance is to be imposed on both for a time, to avoid scandal to the people.

But if it is lawfully determined that he had relations with S. before or after, neither may be given permission to contract while the other is alive. Wilhemina, then, will remain with M. But fitting penance should be imposed on M., who on his own initiative and without a judgment from the Church, evilly dismissed Wilhemina.






C. 13.

One may move that a marriage is null because it was contracted with a minor under seven, but one may evidence this impediment to prevent it being contracted   later.


Innocent III to C. and P., Sons of the

late Malebranca.

To dissolve the marriage contract between I., the son of the nobleman Leo [de' Monumenti] and a certain S., the daughter of Matthew [de' Fortebrachi], you proposed before us and our brothers, that, since the girl had not reached seven, no marriage or betrothal could be contracted with her. The blood relatives did not give their assent, which is particularly required in such matters.

Even if they were of sufficient age, and the blood relatives had assented, these persons could still not lawfully contract marriage because of the obstacle of consanguineous descent. The accusation of consanguinity was made on behalf of the girl, and the grades of consanguinity were computed for both the young man and the girl. Since she wished to prove consanguinity by competent witnesses, I. presented a defense in which he attempted in numerous ways to bar your accusation.

His defense has been debated at length by both. Having heard and understood everything presented, and taken counsel of our brothers, we pronounce by interlocutory decree: Neither matrimony nor betrothal was contracted between the young man and the girl because the girl was clearly not yet seven. Therefore, the accusation does not lie, since there was nothing which could be lawfully moved. But consanguinity can be moved to prohibit contracting marriage.

Therefore, we assign a deadline, the next Feast of All Saints, to prove this accusation lawfully, observing that defenses have been proposed and will be proposed.

By apostolic authority we firmly prohibit anything to be done to the girl to prevent her from proceeding in this business so long as the accusation has not been withdrawn, or these things proved by judicial process. If, against our prohibition, anything is attempted in prejudice of her, we declare it null and entirely lacking in force.



C. 14.

If anyone using language in the present tense contracts with a prepubescent, for which the deficiency of age is not supplied, their matrimony is considered null, but betrothal is contracted, especially if an ernest has been      given.


The Same to the Bishop of Aberdeen.

Your letter presented to us sets out that a certain noble man betrothed his daughter, who was about twelve, to a certain noble man, who gave her a dowry, and both mutually consented. But while the marriage was somewhat delayed, the girl's father went the way of all flesh. When he had passed from human affairs, the girl's uncle joined her to another man in marriage. The one who had first betrothed her contracted with her mother.

Your predecessor, noting that he could not remain with her whose daughter he had lawfully betrothed, promulgated a decree of divorce between them. After the second man, who had taken the girl as wife, died, she married a third while he who betrothed her first was still alive.

They then humbly decided to ask you whether they could lawfully remain together. You, after deliberation, replied that, while the first betrothed was alive, she could not lawfully unite with another. Yet, because your church asked you to consult the Apostolic See about this, you have humbly asked us to grant you a rescript on this.

However, from what is written above, we cannot determine with certainty the girl's age when she betrothed the man, since it says that she was ``about twelve.'' Nor can we determine with certainty whether she then had sufficient discretion to compensate for her youth. So we reply to Your Fraternity as follows: If the girl was then of marriageable age and there was lawful consent in the present between her and the first man, lawful matrimony was undoubtedly contracted between them, even if carnal intercourse did not follow.

But if the girl was not of marriageable age when the man betrothed her, and her discretion did not make up for her age, they undoubtedly contracted betrothal, not marriage, even though the man gave the girl a dowry.

Therefore, if, as in the first case, she contracted marriage with him, she cannot rightly contract a conjugal bond with another while he is alive. But if, as in the second case, only a betrothal was contracted between them, the marriage celebrated between her and that other man must be held lawful, provided there was no other canonical obstruction.

[Given at Rome in St. Peter's, in our ninth year, 10 May 1206.]







TITLE III

Clandestine Betrothal


C. 1.

There is no presumption in favor of clandestine matrimony, but the onus of proof falls on the man           denying it.


From the Council of Arles.

If a man secretly betroths a woman, and either the woman or the man denies this betrothal, only the man is required to present proof.


C. 2.

When matrimony has been contracted clandestinely, if one or both deny it, and no lawful proof is forthcoming, the Church should not compel them to cohabit. But they are to be so compelled, if they have made it public and this has been proved before the Church, unless there is reasonable cause which impedes it. Thus following the     literal text.


Alexander III to the Bishop of Beauvais.

You have suggested to us that we dispense clandestine marriages; we do not see what dispensation should be applied to them. If these marriages were contracted so secretly that they cannot lawfully be proved, those who contract them should not be compelled by the Church.

But if the persons contracting made it known, the Church should accept and approve these marriages as contracted before the Church from the beginning, unless reasonable and lawful cause prevents this.

[If anyone was . . . . (Cf. X 4.17.9.)]



C. 3.

When matrimony is to be contracted, the priests should publish notice of this in the church so that, within a set time, anyone who wishes may present impediments; and, if an impediment is probable, testimony is to be solicited until it is resolved. So for the beginning to §1. §1. If clandestine matrimony is contracted within prohibited degrees, or contrary to the above prohibition, even if this is done in ignorance of the impediment, those born of this marriage are illegitimate. The same is the case if both parents contract knowing there is an impediment to matrimony, even before the Church. So to §2. Abbas. §2. A priest who dares to perform a prohibited marriage, as well as any regular cleric present, shall be suspended from his benefice for three years. If he aggravates the offence, let him be more severely punished. Those who have contracted contrary to this capitulum, although otherwise legally, are to be punished, as well as those who move calumnies against marriages.     So to the end. Abbas.


Innocent III at the General Council.

Since the prohibition of conjugal union has been revoked for the last four degrees, we wish to have it kept strictly for the other degrees. Hence, following in the steps of our predecessors, we entirely prohibit clandestine marriages, and also prohibit that any priest to be present at them.

Therefore, we decree that a special custom found in some places be extended to the others generally, so that when marriages are to be contracted the priests announce them publicly in church, and a term be fixed within which anyone who is willing and able may raise the objection of lawful impediments.

These priests are to investigate whether some impediment exists. When a probable conjecture arises against contacting the union, the contract is expressly forbidden until it is decided by formal declaration what should be done about it.

§1.(53) If anyone presumes, even in ignorance, to enter such clandestine marriages, or those forbidden within prohibited degrees, the offspring of such unions are to be considered illegitimate, and do not have the defense of their parents' ignorance, since these should have known, or were merely simulating ignorance.

In the same way, offspring are considered illegitimate if both parents, knowing of a lawful impediment, presume to contract contrary to prohibition, even before the Church.

§2. If a parish priest contemptuously fails to prohibit such unions, or a member of the regular clergy presumes to be present at them, he is rightly suspended from office for three years and should be more seriously punished if the nature of his fault requires it.

Let fitting penance be imposed on those who attempt these sorts of union, even within permitted degrees. If anyone maliciously raises the objection of an impediment to prevent a lawful union, he is not to escape canonical punishment.



TITLE IV

Those Betrothed to Two


C. 1.(54)

He contracting successive marriages with two women using language in the present tense must adhere to the first. But if the first contract used language in the future tense, and the second used language in the present tense,         he is to adhere to the second.


Augustine on Promises of Agreement

and Consent.

One speaks of two types of promise, that of contract and that of consent. If anyone gives a woman the promise of contract, he ought not take another. If he takes another, he ought to do penance for the broken promise, but let him remain with the woman he took. Such a great Sacrament ought not to be rescinded. But, if he gave a promise of consent, he may not take another. If he did take another, he must send her away and adhere to his first wife.

The promise of contract occurs when someone promises another that he will take her or agree to take her, if she allows him to have an affair with her. But promise of consent occurs when, even without joining hands, he consents with heart and mouth to take her, and they mutually give and receive one another.


C. 2.

This is the penance of one who takes as wife a woman betrothed in the present to another; nor may he ever        have her as wife. Thus according to the literal text.


From Brocard, XXX.

You took her as a wife when another had betrothed her. Send her away, because she can never be lawful for you, and for the seven following years perform the penance called the Penance of Lent for forty days each year on bread and water.


C. 3.

A betrothal in the present is not dissolved by subsequent     matrimony, even if consummated by carnal intercourse.


Alexander III to the Archbishop of Salerno.

Although more than usual we are weighed down by many and various concerns, such that it is not easy for us to reply to others' questions, because of the special favor we have for your person, and compelled by the fraternal charity we feel for those about whom Your Prudence has consulted us, we have tried to reply to your present letter along with others.

You have asked us whether, if there has been lawful consent in the present tense between a man and woman, with or without an oath, and no carnal intercourse has followed, it is lawful for the woman to marry another. Or, if she has married another and had carnal intercourse, whether she ought to be separated from him.

On this we answer your question as follows: If there was lawful consent between the man and woman, with the solemnity which is customary, that is, with the priest or, as is still done in some places, a notary present, before competent witnesses, and there was consent in the present tense, so that each expressly received the other by mutual consent using the customary words with each saying, ``I take you as mine,'' and ``I take you as mine,'' it is not lawful for the woman to marry another, whether an oath was used or not.

If she had so married, she ought to be separated from him and compelled by ecclesiastical stricture to return to the first, even after carnal intercourse. Although others feel otherwise and it was sometimes judged otherwise by certain of our predecessors.

Indeed . . . . (cf. X 3.32.2.)


C. 4.

One who appeals a marriage case should be forbidden to contract marriage while the case is pending. And if that       one marries, they are to be separated.


The Same to the Archbishop of Genoa.

Your Fraternity consulted us about what you should do about those who betroth certain women and then, before they take them or know them, receive others as wives. On this we reply to your question as follows: If the man and woman receive each other with expressed mutual consent in the present tense, neither of them can enter another vows while the other is alive, although they can enter monasteries.

But if there was no mutual consent in the present tense between them, but only a promise for the future, each saying to the other, ``I will take you as mine,'' and ``I will take you as mine,'' and another man betroths the woman and marries her, the second marriage cannot be broken on account of the first betrothal, even if, as we have said, the first exchanged oaths as to the future. But penance should be enjoined on them for violation of their word.

Some raised a controversy before you concerning a betrothal made with mutual consent in the present tense and took other spouses while the their appeal lodged with the Holy See was pending, and before a decree was issued on their case.

We think this should be done about them: If they appeal such a case, you should very strictly prohibit them publicly in the church from contracting any marriage before the decision of the case. If they dare to act against the Church's prohibition made public in this way, you may annul the marriage they so presumptuously contracted.

[Some are betrothed . . . . Cf. X 4.2.9.]


C. 5.

If a man betroths two women using language in the present tense, he shall take the first one betrothed as wife, unless he has already had relations with the second. Contrary custom is void. This was later added to C. 3      above on the same topic.


Innocent III to the Bishop of Modena.

Your's then [cf. X 5.19.13]. (And below:) According to a custom which has long obtained in the city of Modena, someone will swear to take one woman in marriage and later betroth her without carnal intercourse. Then, if he betroths another and has relations with her, the first one he has relations with will be judged his wife rather than the one betrothed earlier.

(And below:) Lest one part be disgraced by not keeping in harmony with whole, the church of Modena should humbly keep and observe what the See of Blessed Peter and its own metropolitan church do and teach.

In future contracting of marriages, we want you to consider marriages celebrated later void, even after coitus, when there had already been consent in the present tense between lawful persons, because this is sufficient according to canonical discipline. So, if persons lawfully joined to others later actually contract marriages, the earlier marriages remain lawful and cannot be broken.







TITLE V

Conditions Set in Betrothals or

Other Contracts


C. 1.(55)

The lack of a dishonorable condition stipulated while contracting marriage does not void the marriage, but is        itself void.


From the African Council.

If anyone has betrothed someone conditionally, and afterwards wishes to leave her, we say that the condition is void and the betrothal is to be considered unbreakable.


C. 2.

A slave manumitted on condition that he become a monk or serve a monastery should be compelled to obey the desire of the one manumitting, or should be returned to         servility if he prefers that.


Gregory to the Bishop of Spoleto.

Since it is proper [cf. A 4.5.2]. (And below:) [But] if someone should complain that he has been unjustly excommunicated, let [Your Fraternity] examine this through a thorough investigation and, having found the truth, resolve the case, so that [no injustice afflicts the innocent, and] the force of discipline not be broken [or] dissolved [through indiscreet presumption].

(And below:) The priest H. complained [to us] that a certain deacon freed two [of his] slaves on the condition that they become monks and remain in the monastery where he was, adding that, if either acted contrary to this, he would be again reduced to slavery [in all respects]. One of them, holding this condition in contempt, [rashly] deserted the monastery and became a cleric.

If you find this to be the case, prevent him from leaving the monastery and assure that the desire of the one who freed him be kept and not neglected.


C. 3.

One who swears to take a woman as wife if she gives him a hundred, is not bound to take her if she does not give the hundred, unless he later consented absolutely or         had relations with her.


Alexander III to the Archbishop of Palermo.

As to those [Cf. X 4.1.5]. (And below:) If someone swore to a woman using these words, ``I will take you as a wife only if you make a gift to me,'' he will not be held guilty of perjury if he does not take her when she refuses to pay what he sought to have her give him under oath, provided that he did not consent in the present tense or have subsequent carnal intercourse with her.


C. 4.

Something given conditionally to the Church belongs to the Church immediately and cannot be recalled for lack of some condition, unless this was expressed in the contract. Thus according to the more correct interpretation. This is a very notable text and often invoked.         Abbas.


The Same.

When any possession is given to the Church conditionally, the gift cannot be afterwards recalled by the donor, unless conferred so that when some condition ceased, possession would be revoked.


C. 5.(56)

One contracting marriage under a condition which is not impossible should not be compelled to consummate          matrimony until the condition is fulfilled.


Urban III.

You have asked us likewise whether a man who has consented to a woman subject to his father's assent should be compelled to consummate the marriage. We reply: Since something reserved to another's judgment cannot be called free consent, and canonical legislation does not disallow a condition in accord with decency, he should not be compelled to contract marriage, unless his father agrees.

Pope Alexander [X 4.1.9; X 4.1.15], our predecessor of happy memory, replied in his consultations that a betrothal could not be dissolved if there was consent in the present or carnal intercourse followed. Rather it was to be firmly observed, although there had been a condition in the contract that was not fulfilled. But this is not contrary to our decision, since this kind of consent is not considered consent in the present, although it was evidently expressed by language in the present tense. Something that depends on another's decision is not something that has happened but something that is yet to happen.




C. 6.

One who contracts a betrothal under a licit condition, and knows his betrothed before the fulfillment of the             condition, removes the condition.


Innocent III to the Bishop of Marsico Nuovo.

You have indicated to us by your letter that a certain woman by the name of P. demanded before us a certain man by the name of N. as husband. She asserted that they had mutually consented in the present and that carnal intercourse followed.

The man, although he did not deny contracting betrothal and carnal intercourse, asserted that he was not bound to take her as wife because they contracted betrothal on condition that his father and uncle agree to the betrothal. But as soon as they heard of it, these both objected to the betrothal. The man attempted to prove this by competent witnesses.

But the woman replicated that, although both pledged their word under the prescribed condition, the man's father and uncle did not object, according to witnesses, within the deadline set for objecting. She said they then had carnal intercourse after the deadline. She added further that, although they had initially contracted conditionally, they later consented to marriage absolutely and simply, without adding any condition. She asserted that this would be proved by witnesses.

The witnesses for both sides were heard, and you had the woman's testimony presented before you and two examiners. But the witnesses, whose testimony was read, immediately declared that they had not said what was read and what they deposed was not what was written. Then one of the examiners strongly objected to this.

So the woman asked that the same witnesses, or others, be heard again on the same matters. You, on account of this development, fixed the following day for the parties. When they were before you, you ordered all the examiners summoned, and admonished them under threat of anathema to say if the testimony to which the witnesses had objected was true testimony. They, however, went on to present different testimony. The husband's advocate objected to this, as the first witnesses had objected to it.

After many allegations, the parties admitted the second testimony, and the man's testimony was presented. The woman insisted in particular that before his renunciation of the betrothal, and again after it, they had carnal relations and the man had a daughter by her. She attempted to support this by her own oath.

Because you had received not only differing, but contrary opinions on this question, you had recourse to the instruction of the Apostolic See and humbly asked what to believe in this. We have examined the testimony admitted by the parties, which you included in the letter you sent to us.

We reply to your question as follows: It is clear from the man and woman's confessions that after the betrothal was contracted they had carnal intercourse. Although there is a strong presumption in favor of marriage, this seems to give way because of the condition set. Although it was proved by witnesses that, the man's father and uncle objected to the betrothal after the man knew the woman through carnal intercourse, it is not likewise proved that his father and uncle objected before he knew her.

[Given at Ferento, 14 July 1203.]




C. 7.

If the impediments of servile condition or impossibility are moved against a contract of matrimony, this is held to be of no avail, unless they effect the substance of matrimony, and then they void the contract. Thus for this      capitulum, which is notable and often invoked.


Gregory IX.

As much as the contract of marriage is favored, it lacks effect if conditions are stipulated against the substance of marriage. For example, if one says to the other, ``I contract with you if you will prevent the conception of children,'' or, ``until I find another woman more worthy in honor or riches,'' or, ``if you will sell yourself in adultery for money.''(57)

But other conditions set in marriage, if they are shameful or impossible, should be held as void, because of the favor for marriage.



TITLE VI

Clerics and Those under Vows Who Can Contract Marriage


C. 1.(58)

A deacon or subdeacon cannot contract matrimony. If he does contract it, they should be separated, and he             becomes irregular.


Alexander III to the Archbishop of Rheims.

About the deacon who wounded another deacon on Holy Saturday and took a wife, we reply to Your Prudence: If contrite and humble of heart, he wishes to return to the Church, let him send away the woman he took as a wife and obtain absolution and penance for both transgressions. After he has done penance, you can, by dispensation, restore him to the office of deacon, and if he is of perfect life and conduct, you may even ordain him to the priesthood.

The discipline of the holy canons provides that a subdeacon, whether he has killed a man or not, cannot contract marriage.

[The parishioners . . . . (Cf. X 3.30.26.)]


C. 2.

A subdeacon cannot contract matrimony.


The Same to the Bishop of Le Mans.

We gather from the contents of your letter that F., the bearer of the present letter, was constituted in the office of the subdiaconate, but joined himself to a certain woman in marriage. Hence, as a provident and discreet man, you made him abjure the woman he had taken as wife.

We commend Your Prudence in the Lord for this action. By this present letter to you we command that, if he wishes to transfer to a canonical or monastic order, and, if his praiseworthy conduct seems to you to warrant this, you may allow his promotion to major orders.

If he refuses to transfer to a religious order, he cannot exercise the subdiaconate, and you cannot allow his promotion to higher orders, although he can still exercise the minor orders.


C. 3.

Solemn vows are a diriment impediment to matrimony already contracted; simple vows impede the contract but    they are not a diriment to that already contracted.


The Same to the Bishop of Worcester.

We remember that we heard a question of this kind from you: Are those who vowed before a bishop to pass to religion, and received the habit of religion, and afterwards took wives to be compelled to send them away and to return to the church to which they had given themselves? To this we reply: If anyone vows himself to religion and, having taken the habit, makes profession, and later couples himself with a woman, he is to be compelled to withdraw from her, and he must pass without objection to the church to which he gave himself. But if he did not receive the habit, nor made profession but only a vow, promising that he would pass to religion, and he afterwards contracted marriage, he is not compelled to pass to religion and rescind the matrimonial vow.


C. 4.

Reception of the habit of religious profession outside of a religious order brings entry into the religious state and, in matters of doubt, does impede the contracting of matrimony, but it is not a diriment impediment for marriage when contracted. Thus according to the inter-      pretation of Panormitanus.


The Same to the Bishop of Lucca.

Your Fraternity has asked us what should be done about a noblewoman who, after the death of her husband, put aside her precious clothes, changed her dress, and took the veil from the hand of the priest. But she did not renounce her property, enter a cloister, make profession on the altar, or promise obedience into the hand of a bishop, abbot, or abbess.

After a year, since she could not bear the many temptations and feared a lapse into incontinence, she put aside the religious habit and, with the Church's permission, solemnly married a certain nobleman.

On this we reply to your question as follows: Just as a simple vow impedes contracting matrimony but does not destroy a marriage once it is contracted, so the habit, taken without profession, impedes contracting marriage, but will never dissolve a marriage once it is contracted.

[Concerning the others . . . . (Cf. X 5.12.11.)]


C. 5.

A vow of chastity in the present impedes the contracting of matrimony. The Church, however, may permit            matrimony for cause. Thus following the literal text.


The Same.

Coming before us, the hermit M. has asserted to us that the woman I. promised that she would marry a certain absent man and gave her word on this. But afterwards she heard more about this man's cruelty and inhumanity and refused to be united with him.

Because she feared being compelled to marry him, she promised a simple vow of continence in the hands of the hermit, but did not change her abode or clothing. The man heard this of this and married another woman and had offspring from her.

We think it safer that, after the promise and simple vow the woman contract marriage rather than incur the guilt of fornication. So, by apostolic decree, we command Your Fraternity as follows: Impose fitting satisfaction on her for breaking her word and violating her vow, but do not delay giving her permission to marry whomever she wishes in the Lord, provided that she did nothing else, such as, changing her clothing and abode, or making profession.


C. 6.(59)

Simple vows, unlike solemn vows, impede betrothal for a future date, but are not a diriment impediment to           subsequent matrimony.


Celestine III.

A certain man, as you say, uttered a vow of chastity but later swore to take a certain woman as wife. Asked by Your Fraternity, we have consulted prudent men and we judge that with God a simple vow obliges no less than solemn vow. So, he is to do penance for swearing rashly and to try to observe the vow he made to God.

But if, after he had given this oath, he married by his own volition, the simple vow which impedes contracting marriage, does not destroy it once it is contracted, so it appears that the answer to your question is clear.

[The other thing that . . . . Cf. X 3.33.1.]


C. 7.

Solemn vows are a diriment impediment to matrimony          once contracted.


Innocent III to the Bishops of Lisbon

and Coimbra.

A certain noblewoman I. has indicated to Our Apostleship that when a girl of tender years, she took the man M., the son of Sancho, as husband. But a short time later he was killed by the enemies of the Cross of Christ. After his death several courtiers sought union with her from the King of Leon.

Her blood relatives heard of this and, at the King's urging, suggested to her that she take a husband. But she then protested that she did not want to marry, and they advised her to make a vow of chastity. She did this in the hands of a certain brother of St. Augustine, with the added condition that she remain in her own home with all of her property. Afterwards she rightly remained there for two years in the habit of this order, although she asserts that she did this unwillingly, compelled no less by fear of the King than by fear of her parents.

Later she informed the King what she had done, and he approved it. He forbade anyone to enter her house or take anything from it without her consent. A little while later, the courtier P. and F., the son of Ferdinand, entered the house of the said woman, with a letter from the King, so that he, P., could take her as wife, even by force. She made it known that, if P. took her, she would commit suicide.

Then she abandoned her house, entrusted all her possessions to a certain Jew, and hid in the church of St. Mary of Vega for six weeks, not daring to leave it even for human necessities. At length, seeing herself forced and deprived of everything, and noting that she had uttered her vow unwillingly, she abandoned it. At her parents' advice she publicly joined P., the son of Michael, in matrimony, and with the passage of time she bore him four sons.

But, because she wants to put her soul's salvation before everything and fears this union was not lawful, she has humbly requested that we reply and instruct her what to do. We note that little or no force preceded her making the vow, and whatever there existed was entirely eliminated by later patience and perseverance. It was the subsequent union that was wicked and extorted by force.

By apostolic decree, we command Your Fraternity: Investigate very carefully the truth of the matter and if the above is true, you are to warn and convince the woman to resume and keep the religious habit she wrongly put aside, and to fulfill her vow. If necessary, you should compel her to do so using ecclesiastical censure.

[If neither . . . .

[Given at the Lateran, 1 December 1199.]




TITLE VII

One Who Marries a Woman He Has Polluted by Adultery


C. 1.

If someone unknowingly contracts marriage with a second woman while his wife is alive, he may not separate from the second after the first dies if he            petitions to do so.


Alexander III to the Abbot of St. Alban's.

It has been reported to us that a certain O., who had a wife, united himself to another woman who did not know of this and he had several children by her. But when the first wife died, he tried to separate from the second, asserting that while his wife had been alive it was not lawfully unite with a second woman.

The canons stipulate that no one may join in marriage with one whom he had earlier polluted by adultery, and in particular with one to whom he pledged his word while his wife was alive or one who plotted the death of the wife. But this woman did not know that he had a living wife. Nor is it fitting that this man, who knowingly acted against the canons, should profit from his deceit.

We reply, therefore, to your question as follows: Unless the woman asks for a divorce, they should not be separated on the man's petition, since he would then benefit from his crime.


C. 2.

If a man, while a first wife whom he has not known is alive, knowingly contracts with a second and knows her, he may not have the second, even after the first dies,        unlike the case where the first was not his lawful wife.


The Same to the Abbot of Fountains.

O. of Angers, a parishioner of the church of York, has indicated to us through his brother W. that W., the son of Romar, who has long since died, captured him and held him chained in prison for a long time until he had forced him to swear to take the woman H. as wife. When he escaped from chains and prison, he took another woman as wife, from whom he had children.

Afterwards, H. sued O. before our venerable brother, the archbishop of York, the legate of the Apostolic See. The archbishop compelled him to swear that, until the litigation was terminated by an ecclesiastical judgment, he would not approach the woman he had taken as wife on his own, until the case had been resolved by ecclesiastical judgment. Also, although H. had exausted the time for having her case lawfully recognized, O. now does not dare to return to the woman from whom he had children.

Hence, by apostolic decree, we command Your Discretion: Investigate carefully and discover the truth of the matter, and if, as he swore, this kind of force was inflicted on O. to take H. as a wife, and he did not willingly consent to her or knew her carnally after the oath, you are then not to dismiss his plea. Rather you may give him the liberty of returning to the other woman he afterwards took as a wife, all appeals being forbidden.

Otherwise, prohibiting him from returning to the second by threat of anathema, you may give him permission to take the first as wife, if he so wishes.


C. 3.(60)

One may not contract with a woman whom one has known while one's wife was alive, if she was involved in     the wife's death.


The Same to the Bishop of Barang.

You asked in your letter about the bearer of the present letter. May he lawfully contract marriage with a woman to whom he was actually joined in matrimony while his other wife was alive?

On this we reply to Your Solicitude as follows: If the adulteress in any way encompassed his wife's death, whether or not he gave his word to take her after the other had died, she is, according to the canons, perpetually prohibited from union with him, and this prohibition is to be perpetually observed.


C. 4.

He who knowingly marries a second, while his wife is alive, even if separated for fault, is to be separated from the second after the first dies. But he can contract with     another woman.


Clement III.

We gather from the declaration in your letter that T., your parishioner and the bearer of this letter, caught his wife in adultery, and with the assent of your predecessor ejected her. She afterwards took the monastic habit.

But, before she died, the said T. took another, lived with her for twelve years, and had several children by her. The said wife has died, and you have been led to consult the Apostolic See on what should be done about the second union.

With the counsel of our brothers, we therefore reply to Your Fraternity: You must separate them from each other without delay. Penance should be imposed on the man for adultery, but he can later take another woman as wife.


C. 5.

One who contracts a second marriage with an adulteress while his lawful wife is alive is to be separated from the second, even if his first has died, and even if they have       cohabited for a long time and had children.


The Same.

The bearer of this letter, by the name of J., had a lawful wife, by the name of A., and committed adultery with M. He himself disclosed this to you by public confession, as your letter to us makes plain. He was called to justice for this, and in the legal proceeding he abjured the adulteress M.

After he had given an oath, in contempt of it and while his lawful wife was alive, he presumed to contract some kind of marriage with this adulteress and cohabited for a long time with her. At length the said A. passed away, but J. nonetheless remained ten more years with the said adulteress, from whom he had ten children.

You, therefore, ask whether John and the woman can remain together, or, if they must be separated, can they lawfully contract other marriages?

We therefore give your question this answer: They must be entirely separated, fitting penance enjoined on them, and perpetual continence imposed on them. This is particularly because they lived together a long time, disturbed the Church by grave scandal, and publicly and knowingly persevered in adultery and perjury.

You know that Pope Leo [C. 31 q. 1 c. 1] has decreed that no one may take in marriage a woman he has polluted by adultery. This case goes beyond pledging one's word to an adulteress that one will take her as wife when a lawful wife has died. Here, while the first wife was still alive, the adulterer presumed to unite in a quasi-matrimony with the adulteress and rashly to violate his oath.

That Pope Gregory and the Synod of Trebur [C. 31 q. 1 cc. 4-5] hold such a marriage, even without the binding of an oath, detestable, teaches that both so joined are subject to public penance and are perpetually deprived of the hope of marriage. That they stayed and cohabited together for ten years and had ten children, certainly does not protect J. and M. The number of the children thus received makes their crime greater, and the length of time does not diminish but increases their sin.

Let Your Solicitude see that each provides for the children they had, and you will administer for them the necessities which their resources supply for their support.


C. 6.

If someone, after his wife dies, contracts with another woman, whom he knew without a pledge of faith while his wife was alive, he is bound to matrimony, so long as      neither was involved in the deceased wife's death.


Innocent III to the Bishop of Spoleto.

You have indicated to us that P., a citizen of Spoleto, lawfully took a certain woman as wife and then left her and adhered to a certain prostitute. He could not be called back from concubinage to his lawful bed. You, therefore, issued a sentence of excommunication against him. But in the meantime his wife had gone the way of all flesh, and he betrothed the prostitute to whom he had adhered.

To your question, we reply in accord with the form of the canons as follows: Unless one of them plotted the dead wife's death, or if he gave his word to contract marriage while she was alive, you will declare their marriage lawful, and grant the excommunicated man absolution according to the Church's form, if he seeks it.

[Given at Rome in St. Peter's, 24 April 1198.]


C. 7.

If someone takes a second wife in ignorance that his first is alive, he may lawfully remain with the second when       the first has died, after they renew consent.


The Same to the Chapter of Messina.

A layman G., bearing this present letter, came before us and made known to us by a humble statement that he once united in matrimony with a certain woman in the city of Limoges and cohabited with her for two years. At length because of his instability he withdrew from her and came to Messina, where he solemnly united with the woman M. She was entirely unaware that G. had another wife, and by her he had two sons.

Penance was enjoined on him to return to his lawful wife. Because of this he returned to his own country, found his proper wife, and rendered to her the debt of the flesh. He then returned to the city of Messina and cohabited with M. as his lawful wife. Now, having humbly and devotedly done the penance imposed on him for his first crime, he seeks our permission to cohabit with M.

While his lawful wife was alive, G. could not unite with M. as wife. However, as his wife is dead, and he is freed from her by law [Rom. 7:2], he can now consent to M. in matrimony, provided he did not pledge his word to the adulteress and did [not] plot his wife's death.

We command [Your Discretion by apostolic decree]: If this is correct, give permission to the said G. to adhere to M. with conjugal affection. All opposition and delay through appeal being barred, do not allow anyone to molest him unduly.



C. 8.

One who has contracted with a second woman, while the first, with whom he did not have relations before or after contracting, is alive, may contract with the second after     the first dies.


Gregory IX to Brother R.

If anyone promised by pledged word that he would take another woman while his wife was still alive but did not know the woman either before nor after this, a marriage contracted with her after the wife's death should not be annulled.

But penance should be imposed on both of them because this was a serious transgression. But a union cannot be tolerated if, before or after this, he had soiled the woman with adultery while his wife was alive.




TITLE VIII

The Marriage of Lepers


C. 1.

The onset of leprosy does not dissolve matrimony or the effects of matrimony. Thus both parties must treat each other with marital affection or take vows of perpetual       continence.


Alexander III to the Archbishop of Canterbury.

It has come to us that, since those afflicted with the disease of leprosy are, by general custom [cf. Lev. 13:46] separated from human society and expelled from cities and villages to solitary places, wives do not follow sick husbands, and husbands do not follow sick wives. Rather they presume to remain without them. Since husband and wife are one flesh, neither should remain for a long time without the other.

Therefore, by apostolic decree, we command Your Fraternity: Do not hesitate to use solicitous exhortations to induce wives to follow husbands who have contracted the disease of leprosy, and husbands to follow wives, and minister to them with conjugal affection.

If they cannot be convinced to do this, bind them strictly that, while one lives, the other must observe continence. If they disdain to obey your command, impose on them with the bond of excommunication.



C. 2.

One spouse is not to separate from the other because of leprosy. And lepers can contract matrimony and be held       to render the debt to each other.


The Same to the Bishop of Bayeux.

Since, according to many authorities, in particular the truth of the Gospel [cf. Mt. 19:9], no one may lawfully dismiss his wife except on account of fornication, a wife may not be separated or sent away from [her] husband because she is struck by leprosy or afflicted by another grave illness.

You asked in your letter [about the bearer] . . . . [cf. X 4.7.3.]

(And below:) If lepers do not wish to practice continence and can find a woman who will to marry them, they are free to enter marriage. If, by divine judgment, leprosy happens to a husband or wife, and the sick one demands the carnal debt from the one who is healthy, what is demanded must be rendered in accord with the Apostle's general commandment [1 Cor. 7:3-4], which gives no exception for this case.



C. 3.

Betrothal for a future date does not bind one to contract matrimony with a leper if the leprosy occurred after        the contract.


Urban III to the Bishop of Florence.

We have received with due benevolence Your Fraternity's letter which moved us, more certain of your faith and devotion, to grant you more abundant honor and favor.

You have inquired [of us] if, after betrothal for a future date has been contracted between certain lawful persons, but before the woman has been given to the man, one of them contracts the disease of leprosy, the other ought should compelled to consummate the marital union, or can he make other marriage vows.

We reply to Your Solicitude: He ought should not be compelled to take her, since their marriage has not yet been consummated.

[A woman's husband . . . . (cf. X 4.19.6.)]


TITLE IX

The Marriage of Slaves(61)




C. 1.

A slave can contract marriage against his lord's will; but this does not free the slave from the service due his lord.



Hadrian to the Archbishop of Salzburg.

It is fitting and not out of harmony with the path of reason that matters suspected of being in doubt should be referred to the judgment of the Apostolic See. Thus Christ's faithful may receive certitude in doubtful matters from where they received their instruction in the Faith. Your Fraternity, if we remember well, has asked Our Apostleship what should be done about the marriages of slaves contracted contrary their lord's will and objection.

On this we shall answer you as follows: Surely, as Your Discretion recognizes, according to the word of the Apostle [Gal. 3:28], in Christ Jesus there is neither free nor slave who can be barred from the Church's sacraments. So also marriages can by no means be prohibited to slaves. Even if contracted contrary to the master's objection and will, this is no reason for dissolving them by ecclesiastical judgment.

Nonetheless, they ought to be subject to their own lords for their owed and customary services.



C. 2.

Let matrimony be put asunder when a free man has unknowingly contracted with a slave girl, unless he had      relations with her after discovering this.


Alexander the III to the Guardian and

Prior of Mortari.

The woman M., the bearer of the present letter, set out to us that, after her husband had lived with her a long time, he objected to the blemish of her servile condition and asserted that she was a slave, and that he thought she was free when he took her as wife.

This matter was treated before our venerable brother, the bishop of Asti, and the woman, who feared that she would be injured there, appealed to our hearing. After a short delay this man withdrew the lawsuit he had initiated. Both are alive. Therefore, by apostolic decree, we command Your Discretion, since you have inquired concerning this: Summon the parties before you and carefully investigate the truth of this matter.

If it is clear to you that this man knew the woman carnally after he heard she was a slave, admonish him and compel him to take her and treat her as his wife with marital affection. But if this is not the case, and a decree of divorce is to be given, have restitution made to the woman of the money she gave the said man in dowry, as this is just.


C. 3.

If it is the local custom that offspring take the condition of their father, the offspring of a free man and a slave        girl are free, and thus free to contract matrimony.


Urban III to the Bishop of Rimini.

As to those things about which Your Fraternity wishes to consult us, we think you have sufficient information. But since out of pastoral solicitude you request our decision to enjoy greater security, we will reply to your inquiries because of the duty of our office.

You have asked whether a woman can demand a divorce because her husband is alleged to be a slave of a monastery and she contracted with him ignorant of his condition. The said man, on the contrary, steadfastly affirms that by the laws of the province, he follows his father's status, and his father acted as a free man at the time of his death.

Now, after ten years, there has been no controversy about his or his father's status. It seems to us that, because of the passage of the time and the favor to freedom, it is safer to decide for the husband.

[To these . . . . (cf. X 3.36.4.)]


C. 4.

If a free man has unknowingly contracted with a slave girl, and did not consent when he discovered this, the matrimony may be put asunder, and he can contract with     another.


Innocent III to Bishop H.

You know that it has come to our hearing that our beloved son G., the cardinal priest under the title of Santa Maria in Trastevere, legate of the Apostolic See, separated our beloved son R., a nobleman and knight, from a certain woman because of an error about her condition.

By apostolic decree, therefore, we command Your Fraternity: Carefully investigate the truth of this matter and, if it is clear to you that this knight contracted with the slave girl unknowingly and, afterwards, when he understood her condition, did not consent to her by word or deed (the reason their union was put asunder by the cardinal), you may, by apostolic authority, grant him permission to contract with another woman.



TITLE X

Children Born of a Free Woman


C. 1.

One born to a free woman or a freed woman is free.


Gregory.

We believe it unfitting that children born of a free woman or freed woman be reduced to slavery. Therefore, we command you, [by the present authority,] to examine the documents diligently, [as we have done ourselves].

If the documents are not from the Church, which ought to shun documents of this sort, prevent her from being harassed and reduced again to slavery. For it is cruel, when someone grants another freedom for a price, that those freed be reduced to slavery again by the very Church that should protect them.

[Again, therefore . . . .]



TITLE XI

Spiritual Affinity



C. 1.(62)

The children of two co-parents, through neither of whom co-parentage arose, may lawfully contract, unless custom reprobates this; let them be separated if co-parentage arose through either or both of them. Thus for this          capitulum, and the same below.


Alexander III to the Archbishop of Salerno.

Now, as to whether sons and daughters born before or after co-parentage arose can marry each other, the canons and customs of different places contradict each another. The first canon [C. 30 q. 5 c. 4] included on this forbids those born after co-parentage arose to marry. Another canon [C. 30 q. 5 c. 5], included after the first, seems to correct this; it provides that those born either before or after co-parentage arose may marry, unless they are the person through whom it arose.

Hence is seems more tolerable to us that the second canon should be observed, unless the custom of the church is contrary and scandal might arise.



C. 2.

Co-parentage between spouses, whether it arose with or     without their knowledge, does not dissolve the marriage.


The Same to the Same.

Whether a man or woman, who knowingly or unknowingly receives his or her child from the Sacred Font, should on account of this separate from the other and marry another is the question you have posed to us. We respond to your consultation that, although it is generally observed that they should separate, some [C. 30 q. 1 c. 4], however, have more humanely and thoughtfully provided otherwise.

And so, it seems to us, that, whether they did this out of ignorance or malice, they should not separate from each other, nor should they refuse the debt to each other, unless they can be induced to practice continence. This is because, if it happened out of ignorance, the ignorance excuses it; if it happened out of malice, they should not be able to use fraud or deceit as a defense.




C. 3.

The children of two co-parents, through neither of whom co-parentage arose, may lawfully contract marriage; if there exists a customary diriment impediment to such matrimony, the local custom is to be observed. So following the more common understanding of the            capitulum's intention.


The Same to the Bishop of Biscaglia.

To Your Fraternity's question about the children of two co-parents, we reply that, if it was through either or both of these children that co-parentage arose, they can under no circumstances be married, and if they have been united we, by pontifical authority, do not deny that they must be separated from each other.

If co-parentage arose through neither of them, we desire that the custom of the metropolitan and surrounding churches be sought out and carefully observed. So, if that church has a custom that disallows such a marriage, or deprives one so made of force, we do not allow such marriages to be contracted in the church committed to you. And, if you discover such unions, you should not neglect to separate them, in accord with the custom of those churches.

But, if there is a custom that such marriages are to be upheld and permitted, your church should not deviate so as to withhold assent from this, because that would appear to reprobate the weighty ancient custom of the surrounding churches in this matter. So it seems more proper that here you follow their example and extend indulgence to such spouses.





C. 4.

Co-parentage creating a diriment impediment to matrimony arises between the father of one baptized and his wife who received the child from the font, if she        acted knowingly.


Clement III.

Martin took Bertha as wife; Teberga joined with Lothar, who had received Bertha and Martin's son from the Sacred Font. L. and B. having passed on, M. contracted marriage with B. Your Fraternity has asked us whether such are to be separated.

We give the following response to your question. Since, as the Lord said [Mt. 19:9], a man and woman become one flesh through marriage, it is certain that Teberga cannot join Martin in matrimony, because she is his co-parent since Teberga is one flesh with him.

[Before contracting . . . . (cf. X 4.13.5)

[Given at the Lateran.]


C. 5.

Co-parentage arising from acting as a catechist,(63) impedes the contracting of marriage, but it is not a          diriment impediment.


The Same.

Matrimony was contracted between P. the son of Rigale and his wife A. As P. has made known to us, they had lived together for two years, and P. had received a son from his wife.

A certain blood relative of A., wishing to separate her from her husband, objected to the marriage, saying that A. had earlier held the son of P.'s concubine for the reception of the Blessed Salt, when he was first brought to the church.

On account of this, they said before you that you ought to give a judgment separating her from her husband. But Your Fraternity, as we understand, not knowing what to do in the case, forbad them marital congress, prohibiting P. to render the debt to his wife when she asked it.

Now, if it is proper before the Church, we say that the truth is that a marriage so contracted should not be dissolved, as this hardly presents a diriment impediment to matrimony. And so, we command Your Fraternity by apostolic decree that you firmly command P., by our authority, to restore marital affection to his wife A. He should render her the debt when she requests it, whether what happened occurred, as said above, before A. contracted marriage with P., or afterwards.

But if this was done as a fraud to break up the marriage, let them receive a penance for their presumption, while protecting the permanence of the marriage.



C. 6.

Spiritual affinity creating a diriment impediment to marriage when contracted arises between the father of one baptized and the one receiving or presenting that one     at Baptism.


Innocent III to the Bishop and

Archdeacon of Lincoln.

The Apostolic See has been approached by C., an Englishman by nationality. He explained to us that once, when he was a youth, he associated himself with a certain woman whom another had previously known. It happened, because of his mother's advice, that this woman received from the Sacred Font a child which he had fathered of another unmarried woman, in order to allay suspicion and rumor about them.

Then, after he had come to love this woman more ardently, at the counsel of his friends, he betrothed her clandestinely. When he found he could not have children by her and had to endure grave abuse from his father, he resolved to abandon the betrothal. So, leaving her, he set off for Jerusalem to pray.

When he returned from across the seas he discovered that she had born a child by another man, and he refused to live with her. Instead, because of her adultery, he moved far away to a distant region and settled in the city of Gubbio. There he took a woman in matrimony and settled on her a tract of land and a proper dowry. He reports that he had offspring by her.

We command, in this matter, by apostolic decree, that Your Prudence investigate the truth of this matter, and that, if H., this man's wife, received his son from the Sacred Font before he espoused her as his wife, you are to declare a divorce, not subject to appeal, between them. You are faithfully to communicate the outcome of this to us by letter, so that we may know the truth of the matter, and whether she can lawfully take a second husband.

[Given at Città di Castello, 8 October 1198.]


C. 7.

If the children of two co-parents, through either of whom co-parentage arose, contract marriage, let them be separated, and let those who know of this impediment at     the time of contracting be required to report it.


The Same to S., a Canon of Hereford.

Your Discretion has taken council with us over whether one born before co-parentage arose can join in matrimony, after the passage of time, with a daughter of a co-father or co-mother; and,if the marriage has been contracted with her and continued for many years, whether they ought later to be separated; and whether those knowing about such a marriage are required to denounce it publicly.

On this, we respond thus to Your Discretion that such persons may not contract marriage and, if it has been contracted, they may be separated from each other, in accord with the rigor of the law. Those who knew about such a contract should report it to the Church.

[Given at the Lateran, 18 March 1202.]


C. 8.

Spiritual affinity arises between one baptized and the child of the baptizer, and it is a diriment impediment to      their contracting marriage. Thus for this text.


Gregory IX.

We understand from your letter that his wife M. charged her husband Alan before the official of Canterbury, and proved through trustworthy witnesses, by these witnesses' public depositions, that he had known her carnally. A. produced the defense that he could not have her as wife because her father, a certain priest, had baptized him.

Then, when the same official, having refused to accept this defense, gave a final judgment against him, he appealed to the Apostolic See. Thus we command that, if this is the case, A. is cleared of the woman's charge, and we impose perpetual silence about this on the woman.



TITLE XII

Legal Relationship


C. 1.(64)

There can be no matrimony between one adopted and the         adopter's daughter so long as the adoption exists.


Nicholas to the Questions of the Bulgarians.

If someone becomes my sister through adoption, there can be no marriage between her and me for the period of time that the adoption lasts.

[If, therefore . . . .]



TITLE XIII

Relations with a Spouse's or

Betrothed's Blood Relatives


C. 1.

Affinity arising after the contracting of matrimony does not dissolve matrimony, but impedes the rendering of the debt, and involves one in the crime of incest as to the        contracting of matrimony.


From the Council of Metz.

If someone knowingly fornicated with his stepdaughter, he cannot request the debt from her mother, nor can he ever have the daughter as wife, nor can he or the stepdaughter ever be joined to anyone else in marriage at any time.

But if his wife cannot be continent and, after knowing that her husband had committed adultery with her daughter, does not have carnal relations with him, she can marry another if she so desires.


C. 2.

Affinity arising from unlawful intercourse dissolves betrothal for a future date, but not matrimony. Those        incestuous in this way cannot contract.


Alexander III to the Bishop of Poitiers.

P., the bearer of the present letter, coming to us, has presented to us Your Fraternity's letter, from whose contents we gather that he took a certain woman as wife. But a certain man persuaded him not to have carnal relations with her for a month after he had taken her. It happened, however, as he has said, that her father ordered his wife, the betrothed girl's mother, to sleep in his bed, and there, incited by the Devil, he had relations with her.

A month later, the father and other relatives forced him to consummate the marriage with his betrothed, which he did not want to do until he had spoken with you about his. When you had heard his confession, you sent him with your letter to the Apostolic See. You asked if he could have as wife the woman with whose mother he had relations, and what penance was to be enjoined on him.

We reply to your inquiry as follows: If this sin is still secret, the marriage cannot be rescinded because it was contracted publicly. But if it is public that he knew his betrothed's mother, and he never had carnal union with his betrothed, a somewhat greater penance should be imposed on him than for adultery. After he has completed it, he can, with a dispensation, contract marriage to another, and the betrothed can marry another. Her father, if he wishes, can dissemble about this.

But if he knew the betrothed, either before or after he knew the mother, he can never have her or another as wife.


C. 3.

Let matrimony not be put asunder because one person        asserts that affinity exists between the spouses.


The Same.

As to the man who has declared that he had known his brother's wife before he joined her in marriage, we reply to Your Prudence: Unless this was public and notorious, or proved by competent witnesses, you may not permit him to move an action against the said marriage because of this.

As to what you assert concerning a certain Saracen who kept a Christian woman for fourteen years and had children from her, we shall reply to Your Discretion: For this great transgression heavy punishment should be inflicted on both the Saracen and the woman.


C. 4.

The incestuous cannot contract matrimony. If they do contract it, it stands. They are then bound to render the debt, but they cannot demand it; likewise the husband       must provide for his wife's needs.


Celestine III.

The letter you sent us shows that G., the bearer of the present letter, after his wife died, knew her daughter, that is his own stepdaughter, by carnal relations. Later, he took a lawful woman as his wife but, returning like a dog to his vomit [cf. 2 Pet. 2:22], he has not hesitated to have an illicit affair with his stepdaughter, not secretly, but publicly.

You have asked our advice on this and, with the counsel of our brothers, we therefore reply with the present letter: While cohabiting with his lawful wife and providing for her necessaries, he may not know her for the rest of his life unless she requests it. Even then he may not approach her without deep sorrow in his heart.

As long as he lives with her he must also do the penance laid down by your decree for incest and adultery. If he survives her, he must be perpetually deprived of the possibility of marriage.



C. 5.(65)

Let matrimony not be put asunder because of the spouses' confession claiming that affinity exists, even if this accords with popular rumor. This is commonly     invoked and is a notable case.


The Same.

Before contracting marriage, a married man had carnal intercourse with a woman consanguineous or related to his wife, as both have confessed. Their part of the neighborhood is also said to be buzzing about this. Your ask whether he should be separated from his wife by the Church's judgment.

On this we reply to Your Fraternity: If the truth cannot be proved by judicial process, they cannot to be separated merely because of their confession or neighborhood rumor. For sometimes persons collude together against a marriage and confess to incest merely because they think the Church's judgment will conform to their's.

Neighborhood rumor should not be judged adequate, because a well contracted marriage may then be annulled, without any reasonable and trustworthy proof.

[In the third place . . . . (cf. X 2.23.3)

[Given at the Lateran.]




C. 6.(66)

The creation of affinity does not dissolve betrothal in the present.


Innocent III to the Prefect of Magdeburg.

We commend Your Discretion in the Lord for consulting the Apostolic See on those matters you considered ambiguous or difficult, so that you might have its authority to move forward on them. In our hearing, it was declared by you that a certain man had contracted lawfully with a certain woman using language in the present tense.

Afterwards, before he had relations with her, he gave her to one of his blood relatives, although she resisted. Although she was unwilling, the blood relative celebrated the solemnities of marriage with her. But, as soon as she regained her freedom, the woman fled from him and insistently demanded to be restored to her first husband, and he to her.

We therefore reply to your inquiry as follows: A heavy penance is to be imposed on the man for this shameful crime. The woman herself is to be solicitously warned, on account of public propriety, not to seek the first back. For his blood relative had relations with her, even though it was against her will. Nor may she return to the second, because she cannot join him because of the guilt of adultery. Let her remain continent until the first husband has gone the way of all flesh.

If perchance she cannot be convinced to do this, compel the first man to return to her and to treat her with marital affection. For he cannot raise the objection of adultery because he caused the adultery, and more particularly because she was unwilling. By the truth of the Gospel [Mt. 19:9] a husband can never send away a wife, nor a wife a husband, except on account of fornication. Yet a husband cannot always send away a wife for this cause, or a wife a husband, because they may be prevented by a lawful defense or lawful replication.

Nor can affinity criminally contracted after the man and his wife had lawfully contracted marriage be charged against her. She did not participate in this crime, and she cannot be deprived of her right without a fault of her own. Although it is said that one of our predecessors [cf. X 4.14.2] made a distinction in a similar case between whether the incest or adultery was public or secret, others assert that the distinction should be made between close and remote degrees.


C. 7.

Carnal intercourse with a girl of seven is a diriment impediment to a marriage later contracted with her blood     relatives. Thus according to one interpretation.


The Same to the Archbishop of Besançon.

For Your Fraternity, the Apostolic See, to whose advice all the faithful should have recourse in doubtful matters, has been consulted on three issues. We reply by the present letter.

First, we approve the sentence of divorce which you promulgated canonically against the man who presumed to join a woman whose seven-year-old sister he polluted by outrageous lust after contracting the betrothal.

[Priests . . . . cf. X 5.27.6.

[Given at Ferento, in our sixth year, 21 May 1203.]


C. 8.

Affinity created by unlawful intercourse breaks a preceding betrothal and deprives one of the ability to         contract matrimony.


The Same to the Bishop of Gerona.

From Your Fraternity's letter we gather that G., who brings it, had often known carnally the mother of a girl whom he had betrothed as wife while she was under marriageable age. Afterwards, when the girl was an adult, he had carnal intercourse with her. Hence you have humbly asked what should be done concerning this man's soul, and whether the woman can lawfully enter a second marriage while he is alive, since the facts are public and notorious.

We determine that penance be enjoined on the said man for his sin. And we reply to your question as follows: If the matter is so, they are to be completely separated from each other. The woman may not marry another if, after knowing about the crime of her mother and the man, she still had carnal intercourse with him.

Neither the man nor the woman's mother can ever enter other marriages, but are permanently bound to keep continence and to bewail the enormous crime they have committed through nefarious lust. But they are so bound only if there is no danger of them committing sins of the flesh.

[Given at Ferento, 22 May 1203.]





C. 9.

As to this title, this says the same as the immediately          preceding capitulum.


The Same to the Archbishop of Magdeburg.

E., a layman, bearing the present letter, has come to the Apostolic See and has declared to us in humble confession that once, when he was a child, at the advice of friends, he swore to take a certain girl as wife as soon as he became of lawful age. When this obligation was confirmed by a group of others giving oaths as guarantors, the girl's father took him into his own home and brought him up with the girl.

After he had dwelt there a long time and obtained familiarity with the whole household, through the prompting of the Seducer of the Human Race, he had carnal intercourse with a sister of the girl he had sworn he would marry. At length, pushed by the his friends, he took as wife the one he had sworn to. Then, after the nuptials were celebrated, whenever the opportunity presented itself, he was accustomed to have sex with both. Although he was accused of this before you, he could not be convicted, nor would he confess his crime.

Now, converted in his heart, he is penitent for what he has committed, and he seeks counsel for his salvation lest, like the horse or the mule who have no understanding [cf. Ps. 31 (32):9], he wander off in peril of his soul. Since the Apostle [1 Thess. 5:22] commands us to abstain, not only from evil, but even from every appearance of evil, we command Your Fraternity by apostolic decree: Enjoin fitting penance on E. for this enormous crime, and then warn and induce him as to his salvation to abstain henceforth from both women.

[Given at Anagni, 24 September 1203.]


C. 10.(67)

The creation of affinity does not dissolve matrimony.


The Same to the Archbishop of Esztergom.

Your Fraternity has devotedly asked to be instructed by the Apostolic See, whether, if a man fornicates with his lawful wife's sister, he can afterwards live with his wife, demand the debt, and render it if asked. Or whether, because of this, the marriage should be put asunder.

We briefly reply to your inquiry: Because of public propriety, the wife should be diligently counseled to abstain from intercourse with her husband and to practice continence until her husband has gone the way of all flesh.

If she should refuse to heed your warning, and there is fear that she will fall into sin, her husband can and must render the conjugal debt to her, yet with fear of God. Affinity criminally contracted after matrimony cannot injure one who did not participate in the crime, and she ought not be deprived of her right without a fault of her own, [although it is said . . . . [cf. X 4.13.6.]

[You have consulted . . . . cf. X 2.6.3.

[Given at Rome . . . , 1206.]


C. 11.

The summary is identical to the immediately preceding            capitulum.


Gregory IX to the Archbishop of Poitiers.

Jordan's wife makes this petition: The layman J. contracted with her using language in the future tense when she had not yet completed her tenth year. Within the space of the year they had carnal relations, but he did not hesitate to unite in matrimony with her mother and seek her embrace for condemned intercourse.

(And below:) So J.'s wife petitions that, since she cannot resist the temptations of the flesh, we condescend to provide for her salvation so that she not be deprived of a right through no fault of her own.

Therefore, we command: If things stand thus, attentively warn and convince both of them to vow perpetual continence. If they cannot be convinced to do that, first enjoin fitting penance on the said J. for the incest he committed, then compel him by ecclesiastical censure to cohabit with her and to render her the conjugal debt when she demands it.



TITLE XIV

Consanguinity and Affinity


C. 1.

Let matrimony be put asunder when contracted between     affines in the first to fourth degrees.


Alexander III to the Abbot of Monte Cassino.

From your letter directed to us we gather that a certain man secretly gave a dowry to a certain widow and carnally knew her and cohabited with her for a year. The guardian has brought the woman's husband into court, declaring that he knew her who was in his power as if she were a prostitute. Then the man and woman affirmed by oath that for a year each had consented to marital intercourse with the other and that they had also lived together as husband and wife. The procurator did not believe the woman's oath, so he demanded that she be endowed publicly.

Eventually the man was willing to endow her in the sight of the Church, but two men appeared who declared he who wished to endow her was within the fourth degree of consanguinity to her first husband. One swore that he had heard this. The other refused to affirm it under oath.

Although he delayed endowing the woman, he did not therefore stop cohabiting with her. However, with passage of time, at the guardian's insistence, the man publicly celebrated marriage and then remained with his wife almost a year.

Now, however, the first question has been revived, and, as you say, the two have sworn before the archpriest of Plumbarola that the first husband she joined was in the fifth degree of consanguinity to the surviving husband. Because there are differing opinions on this, you have asked to be instructed by our letter on what to do in this case.

Therefore, by apostolic decree, we command Your Discretion: Summon both parties and have the witnesses sworn before you. Then inquire how and when they discovered what they are testifying. If they discovered it after the question was moved, the marriage should not be dissolved now. Nor if they learned it from the one denouncing the marriage.

Diligently investigate the truth and, if you learn from circumspect witnesses subject to no objection that the first husband was within the fourth degree of consanguinity to the surviving husband, do not hesitate to promulgate a sentence of divorce. As the canons say [C. 35 q. 4 c. 1], one must abstain from those consanguineous to one's wife, as from one's own blood relations, to the seventh degree.

Furthermore, we will not hide from Your Prudence that suitable persons should be named to compute the degrees on both sides. Matrimonial cases are not to be treated by any except discreet judges empowered to pass judgment who are not ignorant of the canonical legislation on these matters.


C. 2.

The creation of affinity, which is verified at least by         rumor, dissolves betrothal for a future date.


Urban III to the Archbishop of Bordeaux.

You assert that a certain young man was betrothed by his pledged word to a certain young girl who was not yet marriageable. When she became marriageable she sought him, and he moved the defense that he could not to have her because he had carnal relations with one of the girl's relatives after he affianced the girl.

On this we reply to your inquiry as follows: If this is the rumor there, the same young man [can and] ought to be absolved of her charge, for he had only betrothed her for a future date.


C. 3.

If one receives a dispensation to contract marriage with another within an otherwise prohibited degree, it is required that a least one be separated from the common ancestor by the full number of degrees, especially if there      is a local custom to that effect.


Celestine III.

What Your Charity [cf. A 4.19.2]. (And below:) You have asked us whether one related to a common ancestor in the sixth or seventh degree by lineal descent can be united in matrimony to a woman who is related in the second or third degree on one side through lineal descent. You ask because of the dispensation given by Pope Hadrian of happy memory, then Bishop of Alban's and the legate of the Apostolic See in Norway, which permitted people of that land to be joined in the sixth degree.

It seems to you that this can fittingly be done in accord with a rule approved by certain doctors which determines by what degree one is distant from the common ancestor and from a descendent of the common ancestor through another lineage. However, as the series of your letters shows, it is the local custom, in such cases, for the inhabitants of the land to separate those joined by a closer degree, and to block such individuals who wish to be united.

We reply, therefore, to your question: That dispensation should be understood to apply when both of those to be married are distant from the common ancestor in the sixth degree with the relationship computed according to the canons. If one is distant in the sixth degree or seventh degree from the common ancestor, and the other in the second or third degree, they ought not to be joined.

Hence, in this case we proceed more advisedly and defer to the multitude and the custom which is observed. In this, to decree otherwise or introduce a novelty would cause dissension and scandal among the people.


C. 4.

Unbelievers joined within degrees prohibited by canon       law should not be separated after Baptism.


Innocent III to the Archbishop and

Chapter of Tyre.

You wish to consult us on unbelievers converted to the Faith. Ought they to be separated after baptism if, before their conversion, they were joined following the discipline of the Old Law or their own traditions concerning the grades of consanguinity denominated by the canons?

So, on this, we shall reply to your question: Marriage thus contracted before conversion is not to be put asunder after the washing of Baptism, since when the Jews asked the Lord if it were lawful to put away a wife for any reason, he replied [Mk. 10:9], ``What therefore God has joined together, let no man put asunder.'' He thus indicated that there is marriage between them.

[Given at the Lateran, 30 December 1198.]


C. 5.

A husband's blood relatives may lawfully contract with his wife's blood relatives. So for the first. But they cannot contract matrimony within prohibited degrees, even if there is a custom to this effect. So for the            second.


The Same to the Archbishop of Rossano.

On those issues hwereh you are in doubt, you would seek our counsel and you ask the Apostolic See's assistance in doing what pastoral duty demands. We commend your solicitude with fitting praise in the Lord, and reply to your demands with a thankful soul. You have indicated to us that in your diocese a father and son took a mother and daughter as wives, that a husband's two brothers took his wife's two sisters as wives, that an uncle and nephew took two sisters as wives, and that a husband and wife together baptized another's child. Furthermore, in your diocese, some have contracted marriage with others in the third and seventh degrees of consanguinity, asserting that this is lawful according to ancient custom.

[(And below:)] On the father and son contracting a marriage with the mother and daughter, the husband's two brothers with the wife's two sisters, and the uncle and nephew with two sisters, we would reply to you as follows: Although all the husband's blood relatives have affinity with his wife, and all the wife's blood relatives have affinity to the husband, between the wife's blood relatives and the husband's blood relatives, the marriage of the husband and wife creates no affinity that would impede marriage between them.

(And below:) But, lest marriage be contracted within the prohibited degrees, you should prohibit it publicly and punish with ecclesiastical penalty those who act against this prohibition, notwithstanding the custom, which is properly called corrupt.

[But which . . . .

[Given at the Lateran, 1 January 1199.]


C. 6.

A dispensation obtained from the pope for contracting marriage between blood relatives is void if an false reason was given for it, unless the pope later confirms it.    Thus according to the correct and common interpretation.


The Same.

Because concerning [cf. X 1.21.6]. (And below:) As your question sets out, a certain nobleman, N., alleged a false cause, that is, offspring, to obtain a dispensation from the Apostolic See. This concerned dispensation to remain with a woman who was related to him in the fifth degree of consanguinity. It was false because, before he obtained the dispensation, their only daughter had gone the way of all flesh.

But you can dissimulate so that he remains in the union thus contracted, since you say that grave scandal would result from their separation.

[You then . . . .

[Given at Signi, in the sixteenth year of our pontificate, 3 October 1213.]



C. 7.

Witnesses giving depositions on consanguinity ought to begin the calculation of degrees in the genealogy from      the common ancestor or his children.


The Same.

Your Fraternity would consult us whether it suffices for annuling a marriage to have testimony from those who begin computing degrees of consanguinity from an uncle and nephew, that is, from a brother's or sister's child, because they known or have heard nothing about the siblings or their forbears.

We, therefore, reply to your inquiry as follows: Since marriage is much to be favored, the witnesses produced to compute degrees of consanguinity in bringing about a divorce, should begin from the common ancestor, that is from a parent or sibling. They ought to distinguish the degrees in order, indicating the persons by a name or an equivalent identification, particularly since they often give their testimony orally.

Because of the decreased reliability, very little leeway can be allowed in this kind of denunciation, since the same [reason] for beginning computation from the second degree might also be given for beginning with higher degrees.

[Consequently, you have . . . . (cf. X 4.1.26.)

[Given at the Lateran, in the fourteenth year of our pontificate, 13 February 1212.]


C. 8.

The prohibition for the second and third degrees of affinity, which once affected the contracting of marriage, is abolished. Likewise, the prohibition concerning the offspring of a second marriage, which once prevented the contracting of marriage with a first spouse's cognates, is abolished. Thus for this text, which is invoked daily, and     is a unique statement on this matter.


The Same at the General Council.

It should not be judged reprehensible if human statutes sometimes change with the times, especially when urgent needs or evident utility demands this. For God himself changed in the New Testament [cf. Mt. 5:31-44] several things he had legislated in the Old.

Prohibitions against contracting marriage in the second and third degree of affinity and against uniting the offspring of a second marriage to the first spouse's blood relatives frequently produce difficulties and sometimes cause peril to souls. Therefore, as when the prohibition ceases its effects cease, we, with the approval of the Sacred Council, revoke the enactments promulgated on this and decree by the present enactment that those thus contracting may be freely joined.

In the future let the prohibition of conjugal union not exceed the fourth degree of consanguinity and affinity, since a prohibition for the further degrees cannot be generally observed without serious inconvenience.

The four-fold number is in harmony with the prohibition concerning a spouse's body, concerning which the Apostle [1 Cor. 7:3-4] says that the husband does not have power over his body, but the wife, nor does the wife have power over her body, but the husband. For the body has four humors according to the four elements.

Since the prohibition of conjugal union is now restricted to fourth degrees, we will that it be perpetual, notwithstanding enactments on this hitherto published by others or by us. If someone presumes to marry against this prohibition, let him not have a defence in the number of years, for long passage of time does not diminish his sin but increases it. For crimes are more serious the longer they ensnare the unhappy soul.


C. 9.

Those distant in the fourth degree or nearer from the common ancestor may contract with those distant in the     fifth degree and beyond. Thus, following the gloss.


Gregory IX.

One distant from the common ancestor in the fourth degree and a woman distant in the fifth degree through another lineage can lawfully unite in matrimony. This is in accord with the approved rule which says that one is distant from another descended through a different lineage from a common ancestor by the same degree that the more remote is distant from the common ancestor.



TITLE XV

The Frigid, the Hexed, and the Impotent as to Intercourse


C. 1.

When a husband brings action for divorce, asserting that he is impotent, and the wife confirms this, this is an indirect impediment to matrimony, in accord with canonical legislation. If the wife brings the action, asserting that her husband is impotent, the woman has no standing, unless her assertion is proved by an examination of the man's body or another unquestionable means. But if her husband testifies to it, or it is proved, then let the matrimony be put asunder, and the woman be given       licence to remarry. Thus according to Hostiensis.


From Brocard, XIX.

You took a wife and you had her for some time, a month, three months, or at most after a year. Now for the first time you have said that you are of a frigid nature so that you cannot copulate with her or with anyone else. If the woman who is supposed to be your wife affirms what you say, and what you say can be proved through true judgment, you can be separated. But this is on condition that, if you later take another, you will be judged guilty of perjury and you must return to your first marriage after doing penance.

If after a year or a half year she takes herself to law before the bishop or his delegate, saying that you have not had relations with her, and she denies there was any intercourse between you, but you claim the contrary, you are to be believed because you are the head of the woman [cf. 1 Cor. 11:2]. If she wished to take herself to law, why was she silent so long? The woman would have easily discovered in a short time if you were able to copulate with her.

If, after a month or at most after two months, she takes herself as one who has just discovered this novel condition to the bishop or his delegate, saying, ``I wish to be a mother, I wish to have children, and for this I took a husband, but the man I took has a frigid nature and cannot accomplish what I took him for,'' and this can be proved by right judgment, you can be separated. Then, if she wishes, she may marry in the Lord.


C. 2.

Those impotent as to intercourse are unable to contract marriage, whether the impediment arises because of age       or natural defect.


Alexander III to the Bishop of Amiens.

We gratefully acknowledge and receive your consultation of the Apostolic See on matters doubtful to you, and Your Fraternity is not a little to be commended for this.

You have indicated to us that a certain woman in your diocese married a certain man, not knowing that his genitals had been cut because of a double rupture of the groin. He did not have relations with her. Later he became a leper and made his home among the sick. The woman returned to her father's house and, as she was young, desired to marry another man and have conjugal relations with him.

The Roman Church is not accustomed, on account of natural frigidity or a hex, to divorce those lawfully bound. But if it is the general custom of the Gallican Church to dissolve marriages for this reason, we will patiently tolerate it if, according to this custom, you grant to this woman permission to marry whom she will in the Lord.

For just as a boy who cannot render the debt is unfit for marriage, so also the impotent are considered entirely unfit to contract marriage.

[Surely, concerning the canon . . . . cf. X 3.32.10.]



C. 3.

A natural impediment to intercourse, which cannot be        remedied by a doctor, impedes matrimony.


The Same.

We gather from your letter that a certain man of sixteen years or more took as wife a certain girl of thirteen, who was unable to render the debt, although he whould have been. The woman contracted such a serious illness that she became entirely useless to her husband, and her members were so blocked that her husband could not have intercourse with her.

We therefore reply: If that woman contracted that difficulty naturally, and it cannot be remedied by a doctor's help, grant the man liberty to take another.

But if this arose through the man's fault, the man cannot be safely permitted to take another lawfully, yet you might allow this by dissimulation, since it is better to have one woman as wife than to sin with many.



C. 4.

One who knowingly contracts marriage with a woman unable to have intercourse is not to be separated from       her.


Lucius III.

You have asked us whether women who are closed and impotent as to intercourse with men can contract marriage, and whether it should be rescinded if they so contract.

We reply to your question as follows: Although it seems incredible that anyone would contract marriage with such a woman, and although we have no express canon about this, the Holy Roman Church usually decides in similar cases that they are to have as sisters those unable to be wives. For sometimes some medical attention can help them to render and receive the debt in a fitting manner.

C. 5.

If one is proved to be incapable of intercourse, matrimony is to be put asunder immediately, unless they have cohabited as spouses for three years. If they testify with seven oath-helpers that they attempted to have carnal intercourse but could not do so, let them be immediately      separated. So this is commonly summarized.


Celestine III.

A laudable [cf. X 2.16.2]. (And Below:) Solicitous to the last, you have asked how much time is to be granted to the naturally frigid to attempt nuptial intercourse, before, failing in which, they are separated. In the ancient canons and laws different times are granted as to this. But, in the present question, we judge that, if prior frigidity cannot be proved, and if the one who is naturally frigid cannot have relations from the time of the wedding celebration with the woman he took as wife, they should, in accord with the law's provision [cf. X 4.15.6], cohabit together for three years.

If after that period they do not want to live together, the woman may take another man in accord with Gregory's decree [cf. C. 33 q. 1 c. 1], if she can prove by due process that her husband cannot have intercourse with her. But if he takes another, they are to be separated. If they mutually consent to stay together, the husband can at least have her as a sister, if not as a wife.

If they both confess that they never had intercourse and become one through union of the flesh, and each, touching the Sacred Gospels, swears this with seven oath-helpers who are relatives or, lacking relatives, neighbors of good reputation, it seems that the woman can enter a second marriage. But if the man takes another, then those who swore are held guilty of perjury, and they should be compelled to return to the first marriage after penance.

[And then . . . . cf. X 2.25.1.]


C. 6.

If a stricture in the woman makes it impossible for her, barring a divine miracle, to render the debt without bodily harm, the marriage should be put asunder. It should be restored, however, if it later appears that the      Church was deceived.


Innocent III to the Bishop of Auxerre.

We have received Your Fraternity's letter saying that the woman O. matrimonially espoused a certain man, with whom she stayed for many years. But he could not have intercourse with her. Although your archdeacon informed you of this, you wished to have greater certainty in this matter, so you summoned before you certain respectable and trustworthy matrons of the parish. You then charged them, at the peril of their souls, to examine the woman carefully to see whether she was capable of marital congress. These universally pledged in faith to you that the same woman could never be a mother or wife because of a natural disability.

Hence you decreed a divorce between her and that man and convinced the woman to move to another region and observe perpetual continence. You gave the man license in the Lord's name to take another woman because he wanted to become a father.

It later happened that the woman discovered that her blockage had been removed and, casting off the continence she had promised, she took and married another man, G., the bearer of the present letter. You have humbly petitioned us on their behalf to deal mercifully with them.

But you have not completely explained to us how the said woman promised to observe continence, that is to say, by a simple promise or by solemn vows; or whether she had entered a religious order as she promised or remained at home contrary to her profession; or how the blockage was removed, whether by medical help, sex with another man, or some other means.

We recognize in retrospect that their divorce was granted in error, albeit a reasonable one. This is because, as carefully noted, the impediment was not perpetual and could be removed without physical harm by human agency, rather than by a divine miracle. This is shown because she could have sex with someone like her husband. Therefore we say that marriage existed between her and the first man.

Because we determine that there was no marriage between her and G., we command them to be separated. But if the woman moves to the region she promised, the first husband may stay with the woman with whom he later contracted marriage with the Church's authority. Otherwise, the first man, after dismissing the woman he married later, must return to the woman he contracted with first, unless that woman has bound herself by vow to observe continence.

But, he can refuse to return to live with her, if he can claim the defense of fornication because of the fornication she committed with G., or if she committed sexual fornication with another man. But so long as it is unknown whether she made only a simple promise to observe continence or later married G. before the Church, it cannot be assumed that she committed fornication with him, although she should no longer live with him.

By this you can see the answer to the question asked, that is, whether a woman with stricture such that she could not have carnal relations, barring an incision or some other violent intervention causing her not slight but great danger, should be considered capable of contracting marriage.

As for she who had such stricture that the man she married could not deflower her but, after being separated by the judgment of the Church, she married another man with whom she was not so constricted. Should she now be required to return to the first if, by frequent relations with her second husband, she has become able to have relations with the first man with whom she earlier formed a conjugal bond? It is not easy to decide this matter, since the final decision depends on a future possibility.

You then, in accord with what is explained above, should do what we have decreed to be observed under ecclesiastical sanction, all appeals being set aside.

[Given at Ferento, in our ninth year, 3 July 1206.]


C. 7.

If a wife says that her husband, with whom she has cohabited for three years, is unable to have intercourse, and they swear this supported by seven oath-helpers, let the matrimony be put asunder. Thus adhering to the         literal text.


Honorius III.

Your letter presented to us indicated that, when a certain marriage case between the woman M. and her husband A. of the diocese of Artois arose, it was committed to you by our predecessor of blessed memory Pope Innocent.

M. asserted before us that, after being joined in marriage to A. for eight years, he has never been able to know her as wife for as long as she cohabited with him, although he was potent. She had remained intact, as said man could not have intercourse with her. The question arose whether a divorce should be declared between them. A. asserted that he had never known her, although she had always shown herself receptive and ready to his approach, but he could have intercourse with other women.

We, lest this testimony be fraudulent, had the woman examined by matrons of good reputation, who were trustworthy and skilled in nuptial matters, and they gave testimony that she was still a virgin. Then you had the man's parish priest make a careful investigation whether the man had ever had relations with any other women, and you could not prove to us that any woman there had ever had relations with him.

Because the woman persistently requested a divorce and said she wished to be a mother and have children by taking another husband, you directed them to obey the directives and instructions of the Church [cf. C. 33 q. 1 c. 4]. That is, they were to receive and do penance for what they have done so that, if God the founder and author of marriage so willed, they might be able to consummate their marriage. After many postponements, granted to them by you, they returned before you and with one voice said that they were still unable to have carnal intercourse.

So, with the consent of both, you transferred this case for apostolic judgment. Therefore, replying to you, by apostolic decree, we command that, if it is correct that this man and woman have cohabited continuously for three years and have confirmed under oath, with the support of seven neighbors as oath-helpers [cf. C. 33 q. 1 c. 2], that they have never had carnal intercourse, you are to issue a declaration of divorce between them.





TITLE XVI

Marriage Contracted Contrary to the Church's Prohibition





C. 1.

Prohibition by the Church or a judge does not of itself create an diriment impediment for those contracting marriage against it, but it does subject those so contracting to penance. They are to be separated until the reason for the prohibition is investigated. Thus, in effect,     this entire title.


Alexander III to the Bishop of Padua.

The letter that Your Fraternity directed to us declares expressly that a certain man, a parishioner of yours, swore under oath that he would give his sister, who was of marriageable age, to a certain man as wife. She was present and consented. Not many days later she willingly received the man's gifts and presents in accord with the country's custom, and she often embraced him as her proper husband. But when her brother died, she allowed herself to be betrothed to her husband's brother and falsely asserted that she had relations with him.

You publicly prohibited her from uniting with either of them or anyone else. She, spurning your warning, did not hesitate to marry another man. You then summoned both before you and ordered the woman to return to her mother's house. So she appealed to our hearing.

Since it is the duty of our office to correct the transgressions and enormities of others, and to call them back to the life and habits of righteousness, by apostolic decree, we command Your Fraternity: If the matter is as above, compel the woman, barring all appeals and delay, to return to her mother's home, lest your command appear to be contemptible.

Impose fitting penance on her for this great transgression. After she stays in her mother's home for a month, permit her to return to the third man and be lawfully married to him.




C. 2.

Betrothal for a future date, contracted contrary to the Church's prohibition, does not create a diriment               impediment to contracting later with another.


The Same to the Bishops of Worcester and Bath.

From a letter of our venerable brother, the archbishop of Canterbury, legate of the Apostolic See, we have learned that G. of St. Leger betrothed his absent daughter M[ary] to a certain young man by the name of R. Later by the efforts of certain of this woman's relatives, R. contracted, with her present, what was called marriage with her, using language in the present tense.

The man then pledged his word with joined hands that he would henceforth treat the woman as his lawful wife. She pledged that she would reverently and without objection obey him as her lawful husband. Thus, nothing was lacking except a solemn celebration before the Church, which could not be performed because it was Lent.

Later the suspicion arose that R. intended to make second vows, and the case was subjected to the examination of the archbishop. Under threat of anathema, as we gather from his letter, he prohibited the man from making second vows before a determination was reached in this matter. But the man, holding this prohibition in contempt, solemnly joined himself before the Church to V.'s daughter, Matilda by name.

Afterwards, the two woman and the man appeared before the archbishop. R. publicly confessed that he had contracted marriage with Mary, as said above, and that later, seduced by certain men's wicked suggestion, he had taken the other, that is, Matilda.

Mary constantly asserted that her father did not initiate the case by his own will. She added that there had been no obligation between her and R. except for a promise to contract marriage. And, because he had not kept it, she was not bound to keep it. The woman he had taken second demanded that R. be restored to her as her own husband, because he had left her.

The archbishop wanted information on the first marriage, particularly because these women were said to be related by blood. Thus he feared this had involved the vice of incest as well of adultery. So M. voiced an appeal to the Apostolic See, and the next Feast of the Circumcision (just passed) was set as the deadline for appeal.

The archbishop deferred to her appeal and strictly prohibited Mary, under penalty of her soul and threat of excommunication, from marrying anyone until her case received its proper termination before us or before judges delegated by the Apostolic See. But she, anticipating the result of the appeal, married another man by the name of V. She was cited on this before the archbishop but, because of her appeal, she refused to appear.

So, since the parties are absent, we cannot resolve this matter and we commit it to your judgment, in which we have full confidence. By the authority of the present letter we command you: Summon the parties before you and investigate the truth carefully. Declare that the second marriage should be inviolably observed, barring every obstruction through appeal, if there was clearly no impediment except the consent as to a future date, which is asserted to have been exchanged between R. and Matilda.

Although they should not to have entered second vows against the Church's prohibition, it is not fitting that the Sacrament of Marriage be dissolved for this alone. Another penance should be imposed on them because they acted against the Church's prohibition.

[Given on 5 February.]


C. 3.(68)

If those said to be blood relatives contract marriage contrary to a judge's order, they ought to be separated       until the case can be examined.


The Same to the Bishop of Padua.

As to the woman [cf. X 4.1.6]. (And below:) Those who are prohibited from marrying because of consanguinity but receive each other contrary to the Church's prohibition, should be subjected to excommunication. This should last until they separate and it is shown at law whether their marriage can and ought legally to stand.





TITLE XVII

Which Children Are Legitimate


C. 1.

A natural child born to two unmarried individuals is legitimated by the parents' subsequent marriage, even for       matters of inheritance.


Alexander III.

The bearer of the present letter, H., has complained to us that he took a certain woman, the niece of R., as a wife, and R., the woman's paternal uncle, tried to disinherit her because she was born before her mother's betrothal, although afterwards, as it is said, the woman's father took her mother as his wife.

Therefore, by apostolic decree, we command Your Fraternity: If it is so, declare her to be legitimate, barring any obstruction by appeal. And, on our part and on your part, prevent R. from bringing annoyance or harm to the woman and her heirs in the matter of paternal inheritance. If he dares to act contrary to this, strike him with ecclesiastical discipline, barring all recourse to an appeal.


C. 2.

When matrimony contracted before the Church is put asunder, children born or conceived before the decision      are legitimate.


The Same.

A sentence of divorce was canonically issued between I., your co-citizen, and the woman T. Their children born before the sentence and one conceived at that time ought not suffer loss from this, since their parents contracted marriage publicly and without opposition from the Church.

Therefore, we decree that children from before the divorce and those conceived before sentence was passed should not be considered less than legitimate. They should have the right to succeed by inheritance to paternal goods and be supported by their parents' resources.

Therefore, by apostolic decree, we command Your Universality: Do not prohibit the children of this man and the woman from succeeding to their paternal goods and from being supported by them. Do not suffer them to bear any annoyance or harm from anyone by reason of their parent's divorce.





C. 3.

The word of a man or a woman who denies that someone is their child is to stand, unless the contrary is proved by     legal process and witnesses.


The Same to the Archbishop of Rheims.

Your letter sent to us sets out that N., a citizen of yours, reared a certain boy to young manhood, cohabiting with his wife, M., who was not yet betrothed to him. Later, as it is said, he lawfully betrothed her and had children from her.

These seek the paternal inheritance but the said young man objects. He presents himself as son and heir, although he is called spurious by the neighborhood, which believes he is the son of N. and M.

N. and his wife, Matilda, say that the young man is neither spurious nor a lawful son. They say that they nourished him out of piety. This case was moved before you, and the young man was constrained by the bond of excommunication because he refused to observe the law.

So you would ask us what to do about this. We reply to your question about this as follows: In such a case, one should accept the word of the man and woman, unless certain evidence and witnesses prove to you that the young man is their son.





C. 4.

An illegitimate child is one whom a wife conceives in adultery while her husband is alive, or by an adulterer or      other man after her husband has died.


The Same to the Bishops of Exeter and Winchester and the Abbot of Hereford.

The case which cf. X 1.29.7. (And below:) If, with the parties summoned before you, you lawfully determine that the said Agatha, daughter of Angelina, was born when that woman was living with her husband Alan as her husband, or when Agatha's father R. publicly had her, although A. was her husband, declare that she was not R.'s lawful daughter. For a woman cannot be considered a wife, who stained her husband's bed and dared to unite and cohabit with another man while he was alive.

Another . . . . (cf. X 2.14.3.)



C. 5.

Actions on birth, when refused to one petitioning for an inheritance before a secular judge, are to be transferred to an ecclesiastical judge. Thus for this very notable text,      which is often invoked.


The Same to the Bishop of Exeter and the

Abbot of Hereford.

R., the bearer of the present letter, has come before us, not without great bodily difficulty, and declared to us in his complaint that his grandfather had two wives. His father was by one of them; the other bore his uncle, Hugh. This Hugh holds by violence forty acres of land which belonged to R.'s father and him. He refuses to provide R. with the due part of his father's goods to which he should succeed.

R. brought a case before a secular judge against Hugh on the inheritance from R.'s grandfather, H.'s father. Hugh presumed to object against him that R.'s father had sued at length before our venerable brother, the bishop of Norwich. So appeal was finally made to our hearing.

But while one came here, the other party scorned to appear before us either in person or by proxy. We will not allow the case to be protracted any longer and so we commit it to your supervision.

By apostolic decree, we command Your Discretion: Summon both parties before you on this and examine their arguments more fully. Within two months of the receipt of this letter, bring this case concerning the question of birth of R.'s father to a conclusion, barring all obstructions through appeal.

If within two months Hugh cannot lawfully prove his objection to R. as to the paternal inheritance, explain to the secular lord, on whose judgment the case of inheritance turns, that he may not dismiss it because of the question of birth. Rather he is to hear and decide the case on the inheritance.


C. 6.

Natural children are legitimated by the parents' subsequent marriage, spurious children are not. Thus adhering to the literal text. This is a famous capitulum        and is invoked daily in both forums.


The Same to the Bishop of Exeter.

The effect of marriage is such that those born before marriage is contracted are considered legitimate afterwards. But if, while his wife was alive, a man knew another woman and had offspring from her, the child will be spurious, even if after his wife's death he took the other woman in marriage.

The child is to be rejected from the inheritance, especially if the man or the woman were involved in the first wife's death, since then they could not contract lawful marriage with one another.



C. 7.

The Church does not rule concerning civil cases between lay persons. But it will decide whether someone was       born from a lawful marriage.


The Same to the Bishops of London

and Worcester.

We have already committed to you for termination the case moved between R. and F. over whether R.'s mother was born in lawful matrimony. But we inserted in our letter that, before beginning of the principal case, you should restore to R., barring appeal, possession of all he stood possessor of when his grandfather left on pilgrimage to Jerusalem, provided he was despoiled of these possessions by violence.

We note that it belongs to the king and not to the Church to rule about these possessions. We would not wish to detract from the rights and dignity of our most beloved son in Christ Henry, the king [and prince] of the English, who, we understand, has been angered and disturbed that we have written concerning these possessions, because he asserts that judgement on them belongs to him.

By apostolic decree, we will and command Your Fraternity: Leave judgment on the possessions to the king. Investigate more fully the principal case, that is, whether R.'s mother was born of lawful marriage. Bring this case to term in accord with the intent of our letter, appeal being barred, especially since it seems incongruous that the marriage of R.'s ancestor now be questioned at law when it was not questioned while she was alive.





C. 8.

If a woman, separated by a judgment from her first husband, contracts with a second while the first is alive,      the offspring she has by him are legitimate.


The Same to the Bishop and Archdeacon

of Vicenza.

It has been brought to our hearing that a certain H., the son of the late Lazarus, went to Constantinople and stayed there for ten years or more without returning to his wife I. She set out a complaint against him before the former bishop of Vicenza, I. of happy memory. She alleged that she could not wait for him any longer.

But the bishop, as a provident and discreet man, ordered the man's parents to send for him and call him back to his family. When a long time had passed, and the man did not return to his family, the bishop heard the woman's arguments in the sight of the Church, promulgated a decree of divorce between them, and granted the woman full liberty to marry another man.

As the truth in this matter is not clear to us, by apostolic decree, we command Your Discretion: Investigate the matter diligently and, if it appears to you that the bishop did give a decree of divorce between them, rule those children legitimate which she bore by the man she married with the bishop's authority, without any hesitation or objection by the Church.

Do not suffer them to be excluded from their inheritance for this reason. If any act contrary to this, impose total silence on them with apostolic authority.



C. 9.

Children born from a clandestine marriage approved by the Church are legitimate. Thus adhering to the literal      text.


The Same to the Bishop of Beauvais.

You have suggested to us [cf. X 4.3.2]. (And below:) If anyone was born from a clandestine marriage later approved and ratified by the Church, judge him to be a legitimate son and heir.



C. 10.

Those born from matrimony contracted contrary to the impediment of public propriety are illegitimate and excluded from their parents' inheritance. It should be        kept in mind that this often occurs through ignorance.


Celestine III to the Archbishop of York.

For what is referred to us [cf. B 4.10.1]. (And below:) We reply to Your Fraternity as follows: As the impediment of public propriety prohibits it, marriage cannot be contracted between them, and if it has been contracted, it ought to be put asunder.

Their children have neither the defense of the Church's permission nor of paternal ignorance. But it does seem that they should be allowed some succession to their father's goods.


C. 11.

To prove a child illegitimate it is not sufficient to show there was an impediment to the marriage, if it was           conducted before the Church.


The Same.

The statement of the widow L. has informed us that marriage was lawfully celebrated between her father G. and her mother A. And that they remained together quietly as long as they lived.

After their deaths certain men asserted that she was born from an unlawful marriage and they tried to remove her from the paternal inheritance as illegitimate.

By apostolic decree, we therefore command Your Discretion: If it is so, declare this widow legitimate by our authority.


C. 12.

The testimony of witnesses proving someone legitimate stands, even if local rumor and hearsay concerning the       parents holds the contrary.


Innocent III.

You have made known by your letter to us that R. begot a child by a certain woman whom, according to the opinion of the greater part of the neighborhood, he had as a concubine. Later, after she had given birth, he took another as wife. She by whom he had the child joined herself with another man.

With the passage of time R. swore under oath before many people that he had earlier affianced as wife the woman who had appeared to be his concubine, and that he had begoten a son from her. Afterwards, as he lived six and a half more years, when he was dying, he instituted his son by her in his testament as heir and called him a lawful son.

It was committed to your inquiry and ruling whether this son was R.'s lawful heir and to be admitted to his patrimony. You believed that, in addition to a decretal [X 4.17.3] of our predecessor, Pope Alexander of happy memory, you were to accept the word of the man and the woman. After this, you heard witnesses produced by R.'s son, who proved at law that R. had affianced his mother in the chapel of St. Sergius. You then declared him to be R.'s lawful heir.

But we point out that when he put away his concubine and entered another marriage, this seemed more like something done in truth than the charade of one dissimulating. From this it seems that he denied that marriage had been celebrated between them. There was, however, a betrothal as proved by lawful witnesses, which shows they were joined matrimonially. For this betrothal was either for the present, such that lawful consent was expressed by language in the present tense, so that there was a matrimonial union between them; or the betrothal used language for the future and was followed by carnal intercourse.

Relying not so much on our predecessor's decretal, which speaks of a dissimilar case, but on the proofs presented, we reply that you have proceeded lawfully. By apostolic authority, we confirm your ruling, and we have communicated it to the client by the present letter. We enjoin you by the apostolic authority of this present letter, first to give warning, and then by ecclesiastical censure cause this sentence to be observed inviolably.

[Given at Rieti, 5 August 1198.]


C. 13.

In the Lands of the Church the pope can legitimize illegitimate children. In other lands, however, he does not, unless there are compelling reasons, or he does so only for spiritual matters. But in those cases, however, he is understood to legitimize, indirectly and consequently, for temporal matters as well. He should not act in these later cases without hesitation. Thus the interpretation favored by Panorm. This is a difficult and very      famous capitulum.


The Same to G., a Nobleman of Montpellier.

Approaching the Apostolic See through our venerable brother, the Archbishop of Arles, you have humbly implored us that we accede to grant your sons the title of legitimacy, so that no objection as to their birth will prevent them from inheriting from you. The Apostolic See does have full power to do this, because, after various cases concerning those born in unlawful ways are examined, one finds that it has given such dispensation not only to those born naturally but also those born in adultery. These dispensations granted them legitimacy in spiritual matters so that they could be promoted to bishop.

In accord with this, it is more plausible and probable to believe and think that the Apostolic See can legitimize for secular acts, especially if those who have the power of legitimating do not recognize any human superior except the Roman Pontiff. For spiritual matters require greater prudence, authority, and competence, and when something is lawful in greater matters, it also seems to be lawful in lesser matters.

That one raised to the episcopal dignity is freed from paternal control likewise shows this. Furthermore, although an ignorant bishop might ordain someone else's slave to the presbyterate, the one ordaining is required to make restitution to the master according to canonical form, but the one ordained is freed from the yoke of slavery. For it would be a monstrosity if one could lawfully conduct spiritual affairs but not lawfully conduct temporal ones. So a dispensation in spiritual matters also provides one in temporal ones.

Now the Apostolic See freely does this in the Patrimony of St. Peter, where he possesses both the authority of the supreme pontiff and the power of supreme prince. Since this indicates that the Roman Church possesses authority to legitimate, not only for spiritual matters, but also for temporal, we could then grant to your sons the favor requested by your archbishop in consideration of your merits and those of your ancestors, who always showed such great devotion to the Apostolic See. Nevertheless it seems very rash to have requested this, for it could soon become a precedent, although it could be alleged in favor of petitions of this sort that we had done this in similar cases.

Our most dear son in Christ Philip, the illustrious King of the French, dismissed our most dear daughter in Christ, the illustrious Queen of the French I., and then sired a boy and a girl from another woman. You likewise have taken another outside of wedlock and had children by her. You believed that, as with this king's children, the Apostolic See would also mercifully grant this dispensation for your children, especially as necessity compelled this, and you were in a special way our subject.

Now the king of the French had earlier received a legitimate heir from the queen of the French, a woman of unblemished memory, and he hoped and desired that this one succeed him on the throne of that kingdom. You, on the other hand, have not received a male heir from your lawful wife to secede you in inheritance and devotion to us. Likewise, that king was subject to us in spiritual matters only, but you are subject to us in both spiritual and temporal matters, for, as your archbishop himself said, you are subject to us temporally because you hold part of your lands of the church of Maguelone, which temporally pertains to the Apostolic See.

But, after careful investigation, the two cases are found to be different, not similar. That same king was separated from his queen by the archbishop of Rheims, a man of saintly memory, the legate of the Apostolic See. But you, as you said yourself, separated from your wife through your own temerity. He took another before he had received the prohibition against marrying another, and from her he had proper offspring. But you attempted to take another in contempt of the Church, and so the Church used its sword of punishment against you.

Furthermore, the king could claim the impediment of affinity against his marriage with the queen. He brought witnesses before the bishop, whose decision was cassated only for failure to follow proper procedure. We were led to appoint other knowledgeable legates in this matter after he had taken back the queen. But you, as it is reported, presented nothing against your wife to justify a divorce, because, although faithfulness to the bond is one of the three goods of marriage, its violation does not destroy the conjugal union.

So, the question of whether the king's children were legitimate or illegitimate turned on the issue of affinity, and it cannot be denied that this was a suitable question. For had affinity been proved, the queen would not have been his wife, and, as a consequence, his union would not have been lawful and could not have produced legitimate children. In your case, you neither asserted or provided any argument to prove they were not born legitimately.

Furthermore, since the king himself recognized no superior in temporal matters, he could submit to our jurisdiction without injuring another's rights, and he did so submit. For this reason, perhaps, others would have thought that he was dispensed, not as a father with his children, but as a prince with his subjects. You yourself are certainly subject to others. Hence, you could not subject yourself to us in this matter without injury to those same individuals, unless they had indicated their assent to us; nor could you, in this matter, have been exempted from their authority to receive the faculty of dispensation.

Having considered his arguments, we granted the favor requested by the king, taking our reasons from the Old and New Testaments. We exercise temporal jurisdiction, not only in the Patrimony of the Church where we possess the supreme temporal power, but also in other regions for certain particular cases. But we do not wish to prejudice anyone else's rights, nor to usurp any power that does not properly belong to us. For we are not ignorant that Christ said in the Gospel [Mt. 22:21], ``Render, therefore, to Caesar the things that are Caesar's, and to God the things that are God's,'' and to those requesting that he divide their inheritance for them [cf. Lk. 12:14], ``Who has appointed me a judge over you?''

Furthermore, as it says in Deuteronomy [17:8-12], ``If you perceive that there be among you a hard and doubtful matter in judgment between blood and blood, case and case, or leprosy and not leprosy, and you see that the words of the judges within your gates vary, arise and go up to the place that the Lord will chose; you shall come to the priests of the Levitical race, and to the judge that shall be at that time. And you shall ask of them. And they shall show you the truth of the judgment. And you shall do whatever they shall say, that preside in the place, which the Lord shall choose, and what they shall teach you according to his law. And you shall follow their sentence: neither shall you depart to the right hand nor to the left. But he that will be proud and refuse to obey the commandment of the priest, who ministers at that time to the Lord your God, and the decree of the judge; that man shall die, and you shall take away the evil from Israel.''

Certainly, since Deuteronomy means ``Second Law,'' that very word itself shows [in this matter] that what is decreed in the New Testament must be obeyed. The place the Lord has chosen is the Apostolic See, as the Lord has founded it on himself as a cornerstone [cf. Mt. 16:18]. For, when he encountered Peter fleeing the City, the Lord called him back to the place he had chosen. For, when Peter asked him, ``Lord where are you going?'' he responded, ``I am going to Rome to be crucified again.''(69) Which means that he was then returning to that chosen place.

Now the priests of the Levitical race are our brothers, our fellow administrators of the priestly office by Levitical right. Now he is priest and judge over them, to whom the Lord addressed himself in Peter [Mt. 16:18], saying, ``I will give you the keys of the Kingdom of Heaven; and whatever you shall bind on earth shall be bound in heaven, and whatever you loose on earth shall be loosed in heaven.'' His vicar, who is a priest forever according to the order of Melchizedek [cf. Ps. 109 (110):4], was thus constituted judge of the living and the dead.

There are thus three judgments. The first is between blood and blood, by which we understand criminal and civil; and the last is between leprosy and leprosy, by which we understand civil and ecclesiastical. The middle, that between case and case, refers to both ecclesiastical as well as civil cases where anything is difficult or ambiguous and recourse must therefore be made to the Apostolic See. And, if anyone should show contempt for its sentence, he is to die, and evil be removed from Israel. That is, he is to be treated as dead, on account of the sentence of excommunication, and he is to be separated from the Communion of the faithful.

Now Paul, to explain the fullness of this power, wrote to the Corinthians, saying [1 Cor. 6:3], ``Do you not know that we shall judge angels? How much more worldly things!'' Furthermore, an office with secular power is usually exercised by one personally in some matters, but never through others in other matters. So, we were led to grant a dispensation to the children of the often mentioned king of the French, about whom there was a question of whether they were legitimate from birth or not.

But the Mosaic and canon laws detest those born from adultery. The Lord [Deut. 23:3] says that those who are bastards or spurious may not enter the assembly until the tenth generation, the canons [X 1.6.7] forbid their advancement to Holy Orders, and secular laws [Auth. Licet patri post Cod. 5.27.8; Auth. Ex complexu post Cod. 5.5.6] bar them from succession to their parents, denying them any support. So we will not accede to your request, unless it be proved that you are not at fault and that we have greater freedom of jurisdiction. Yet we do embrace you in our arms with special love and there offer you whatever special favors we can, respecting God and propriety.


C. 14.

If a married man, not knowing his first wife is alive, contracts with a second before the Church, their offspring     are legitimate.



The Same to H. and R., Canons of Benevento.

It has been made known to us from the contents of your letter that a certain widow, G., asked to have restored to her and the ward, her son, the inheritance of R., her husband, Landulf de' Granni and his nephews, together with the fruits taken from it. By our delegation you heard the case.

The opposing party attempted to exclude her petition because he asserted that R., the widow's husband, was born in adultery, and he set out that Robert's father, while his lawful wife was alive, also had another woman by the name of Marucia from whom he begot Robert, the widow's husband.

On the contrary, the party of the widow replied that Marucia did not know that R.'s father had another wife and that she contracted with him before the Church. So the son he had by her ought to be considered legitimate because those who are not born in knowing adultery should not be accounted illegitimate.

This lawsuit was carried on for a long time before you. Several prudent men, whose counsel you asked, disagreed about it. So you decided to ask the counsel of the Apostolic See. We have considered these matters, and the others explained to us in your letter, and have thoroughly discussed them with our brothers.

We understand that R.'s father took R.'s mother as wife before the Church. She was entirely ignorant that he had united in matrimony with another. It was while she considered herself his lawful wife that he had R. by her. We incline in favor of the offspring, and account R. to be legitimate for this purpose.

Therefore, by apostolic decree, we command Your Discretion: Rule him to be legitimate, and in the other matters proceed in the same manner according to the intent of our letter.

[Given at Rome in St. Peter's, 15 October 1205.]





C. 15.

Unbelievers' offspring who later convert are legitimate, even if the parents are related within a degree prohibited      by canon law.



The same to the Bishop of Tiberias.

We rejoice [cf. X 4.19.8]. (And below:) Public utility urges, and we wish, that those offspring who have received the Faith be accounted as legitimate, although they were born from unions of unbelievers who had contracted with matrimonial affection in the second, third, or higher degrees.

[If a man has . . . . cf. X 4.19.8.]



TITLE XVIII

Who Can Denounce a Marriage or

Testify Against It


C. 1.

In actions on the matrimonial bond, when the accused is contumaciously absent, witnesses may be heard, even if they are illegitimate, concerning impediments to matrimony. Sentence should be passed in accord with what they       say.


Alexander III to the Bishop of Paris. It is related to us by you that a certain girl's father gave her in marriage to a certain citizen of Paris. Her husband, after he had remained with his wife for some years, left the city in fear of death because of a homicide which he had committed.

Now it is said and seems to be lawfully proved that the girl's father brought the young man to Christianity and, what is more, washed him in the sacred font. But he cannot be found, although you have sought him by letter, and five years have passed.

Since Your Fraternity wished to consult us on this, we reply to your question as follows: If the young man and girl were undoubtedly together for several years, those who now accuse their marriage seem suspicious. If what had been asserted is manifest, or the lawful accusers and witnesses seem above all suspicion, and the young man, although he has been sought with all diligence, cannot be found, you can receive the witnesses and bring the case to a canonical conclusion. But proceed without even the appearance of favoritism or of taking temporal advantage from justice. Surely those who had knowledge but keep silent when they contracted the marriage should not now be heard against it.



C. 2.

In marriage cases, denunciations and testimony are to be        given in person and not by letter.


Clement III.

We have been asked by your church whether anyone can be admitted to denounce a marriage, not by testifying verbally, but only in writing. We reply to this: In such cases, except by presumption, writing is insufficient to give a judgment, unless there is other lawful supporting proof.

We also answer your added question: Those present at a betrothal, who were silent when questioned, will not be heard later if they want to charge something against the marriage, unless they want to say something which they really learned later and of which they clearly knew nothing when the interrogation was conducted.

We have decided not to add in the present letter how oaths are taken from those who denounce a marriage or charge something against it. Nor about how many years later people can be heard to denounce a marriage. The form of this oath is expressed carefully in most of the canons [C. 35 q. 6 cc. 5-8], and, on account of the variety of cases and diversity of persons, a fixed number of years cannot be set in advance.

[Given at the Lateran.]



C. 3.(70)

In marriage cases concerning consanguinity and the           contract, blood relatives and parents can testify.


Clement III to the Bishop of Florence.

It seems to us that the second woman he took against the Church's prohibition is not his wife, although he had not betrothed the first. What is done against the Church's prohibition and order cannot be considered ratified, as the authority of divine and human law proclaims it to be irregular. Because the woman he took irregularly and contrary to prohibition is not his wife, he should be compelled to receive the woman to whom he swore, whom he betrothed, and from whom he generated offspring. Thus the force of an oath will not cheapened, and they shall keep their pledged word to one another. Their offspring will then be brought up and educated in the worship of God, and no one will commit perjury and other fraud in this matter.

Ancient custom, as well as divine [cf. C. 35 q. 6 c. 3] and human law, prove that male and female parents, siblings, and blood relatives can be admitted to give testimony to make or annul a marriage. Parents should especially be received, and if parents are lacking, closer relatives should be admitted, for everyone tries to know his genealogy by witnesses, charts, and the recitation of his ancestors.

Thus those who are more knowledgeable should especially be admitted. They are also to be received for testimony in making a marriage. Who ought more to be received than they whose knowledge and interest are such that, if they had not been present and given consent, the marriage would be null by law?

It is read that ``A father shall not be heard in the case of a daughter, or a son in the case of a father.'' This is true in criminal cases and contracts. In making or dissolving a marriage, they are fittingly admitted because of the requirements of marriage itself, and because this is suitable.


C. 4.

One betrothed against her will, who later voluntarily          consents, is not to be heard against her own marriage.


The Same.

You have added further that someone contracted with a girl under the age of marriage. She later finally approached the proper age, and he had relations with her several times. Four or five years after marriageable age, she denounced her marriage, asserting that from the beginning she had always rejected him. She proves her assertion by witnesses distinguished for their reputation and conduct.

So we rule in this case: She ought not to be heard against her marriage because she never protested before she was lawfully known, as she could have on coming of age. According the canon law [X 4.2.10], she could protest before giving lawful consent in her twelfth year. When she consented to even one act of carnal intercourse on reaching the lawful age, her silence at this point undoubtedly indicated her approval.

[A certain man . . . . cf. X 4.6.6.]


C. 5.

One denouncing matrimony out of malice is to be            disallowed.


Innocent III to the Archbishop of Genoa, and the Prefect and Prior of St. Mary of Alba.

M. of Casoli, a citizen of Genoa, has declared to Our Apostleship that he lawfully took a certain N. as wife, and that her mother S. intended to denounce the marriage to extort money from him. Although there are no irregularities to confirm her deposition, she demands money to stop denouncing the marriage.

Since no indulgence should be given to human malice, by apostolic decree, we command Your Discretion: If this is true, block this woman from denouncing the marriage and impose silence on her in this matter.

[Your brother . . . .

[Given at the Lateran, 15 June 1204.]



C. 6.(71)

One who stayed silent for a time concerning the charge is to be disallowed from denouncing matrimony, unless it is probable that he had been ignorant of it, or swears that he just discovered it and is not raising the objection       out of malice.


The Same.

Since in your diocese [cf. X 3.30.30]. (And below:) If someone appears to denounce a marriage after it has been contracted, and that one had not come forward publicly when the banns were published in the church according to custom [cf. X 4.14.8], it is rightly asked if his testimony can be heard in accusation.

In this we would distinguish: His charge against those now married ought to be heard if he was outside the diocese at the time of the said publication; if he did not know about the publication for other reasons, such as he was out of his mind with fever at the time; if he was of such tender age that he could not understand these matters; or if he was prevented by some other lawful cause.

Otherwise, as there is reasonable presumption that the announcement was publicly made when he was in the diocese and he was not ignorant of it, he is undoubtedly to be rejected as suspect. That is, unless he swears under oath that he discovered his charge later and that he is not acting out of malice. Then, even if he learned it from those who were silent at the time of publication, the avenue of accusation should not be closed to him. For, although their fault in keeping silence excludes them from charging, he cannot be excluded because he is not at fault.

[But either . . . . cf. X 2.22.44.

[Given at the Lateran, in the fifteenth year of our pontificate, 29 October 1212.]



TITLE XIX

Divorce


C. 1.(72)

Unavoidable homicide does not deprive one of the right to marry, but involvement in the death of one's spouse        does.


From the Council at Worms.

If a woman conspired with others to bring about her husband's death, and the husband killed one of them defending himself and [can] prove this, the husband can send this wife away and after her death take another if he so wishes.

But the woman who so conspired is subject to penance and deprived of the hope of marriage.


C. 2.(73)

Spouses should not be separated because of either's crime, unless it is spiritual fornication, and then the           marriage endures, even if they are separated.


Alexander III.

We were asked by Your Fraternity if a woman ought to be separated from her husband because of robbery or other crimes, and if she may marry another. You likewise asked whether a husband can be divorced from his wife for any crime, and whether that one can lawfully marry another.

So we reply as follows: A woman ought not to be separated from her husband because he committed theft or some other crime, unless he tried to involve her in his misconduct and wanted to corrupt her religious Faith. Nor may she to remarry for any reason.

But if he would drawn his wife to wicked unbelief, the woman can withdraw from her husband and be separated from him. But she cannot lawfully marry another, because, although separated, they are still married. The effect of this ruling applies also to husbands.


C. 3.(74)

A husband may not dismiss his wife without a judgment of the Church, even for the impediment of notorious consanguinity. If there is rumor of an impediment to the marriage, even if none deny it, the bishop can, by virtue of his office, investigate it. If the impediment is notorious, the bishop can, by virtue of his office, put the     marriage asunder.


The Same to the Bishop of Amiens.

The count of Ponthieu, without a judgment of the Church, sent away his wife, the daughter of B. of St. Valéry, claiming that she was his deceased wife's blood relative. Your prudence knows that, even if this relationship was public and notorious, he could not be separated from her without a judgment of the Church.

Therefore, strictly force him to receive her because she seeks restoration. If he refuses to receive her, impose on him and the woman he has subsequently married the bond of excommunication. If, however, any appear who wish to denounce the marriage and can do so lawfully, hear the case and decide it in a suitable way.

Moreover, we reply to you as follows about H., who took his blood relative, the daughter of Adhelm, as a wife: If this is public and manifest, and no one will denounce the marriage, we reply to you that it is your duty to dissolve contacted marriages which are unlawful for such grave reasons although there are none to denounce them when the relationship is manifest or public (something not credible unless they are cousins in the first or second degree).

[To these things . . . . cf. X 3.30.15.]






C. 4.

A wife petitioning the return of her husband is to be refused if she is a notorious fornicator and her husband     is continent.


The Same.

You have indicated to us that a certain knight in your province dismissed his wife without the judgment [and authority] of the Church, because he had been told that she committed incest with a certain blood relative. For this the knight was subjected to the bond of excommunication.

The woman herself did not dispute this, but had offspring from another man. Nonetheless, she asked the return of her husband, asserting that he had unjustly dismissed her, and this was the reason for her adultery.

You have asked us whether this woman should be restored to her husband, and the husband compelled to receive her. So we reply to your question as follows: If it is notorious that the woman committed adultery, her husband should not be compelled to receive her, unless it is determined that he committed adultery with another woman.

C. 5.

Matrimony is to be put asunder because of the wife's adultery, but, if the husband later fornicates, it is to be        restored. This is a useful case and often invoked.


The Same.

We have gathered from your letter that the bearer of the present letter, V. by name, married someone formerly from your diocese, namely, Lucia, but due to the prompting of the Evil Spirit, they were at peace only a short time. V. asserted that he took her out of fear that violence would be inflicted on him. You and your chapter, by warnings and admonitions, often tried to restore peace between them. You also compelled them to be reconciled after they had rashly separated.

At length, the husband proceeded at law against his wife for the crime of fornication. She, led by some unknown spirit, began to confess publicly that, since her husband refused to provide due and necessary things, she had been compelled to commit what he had charged. You diligently admonished her not to say something so shameful about herself because of anyone's suggestion or unjust counsel, but she asserted it more openly.

You convoked your chapter and other discreet men. Then, following their advice, you privately enjoined both of them strictly to observe continence by living chastely apart from one other.

From some men's report you learned that V. intended to take another woman as wife, and you diligently warned him not to attempt this in any way. But he secretly went outside the city and rashly celebrated betrothal and marriage with the other woman.

When you tried to investigate what had happened, so that you might act on it, V., explaining and expounding the sequence of events, seems to have appealed to our hearing.

Hence, by apostolic writing we command Your Fraternity: If things happened this way, compel the man by sentence of excommunication to return to his lawful wife, barring all appeal. Enjoin penance on him for his adultery with the second woman, and make him treat the first with marital affection.

[Immediately send that chaplain . . . . cf. X 4.21.1

[Given at the Lateran.]


C. 6.(75)

A wife separated from her husband by proper authority because he has lapsed into heresy is to be compelled to accept him again if he repents, even if she was separated      from him by a judgment of the Church.


Urban III to the Bishop of Florence.

A woman's husband fell into heresy, and she left his company without a judgment of the Church. He has returned to Catholic unity. Is she to be compelled to restore the marriage?

It seems to us that she should return to the man who has repented. And if she refuses to return, she is to be compelled, especially if she withdrew so that fatigue and discomfort would compel the one fallen into heresy to convert from his error.

We direct that she should be compelled to receive him, even if she withdrew at the judgment of the Church, without any hope of the marriage being restored.

[But as to the wife . . . . cf. 3.28.7.]


C. 7.

The conjugal bond is not dissolved through a lapse into heresy by one of two believing spouses. But, if one of two unbelieving spouses converts to the Faith, and the other refuses to cohabit without blaspheming or committing mortal sin, the marriage is dissolved, and the     convert can remarry.


Innocent III to the Bishop of Ferrara.

The more we learn how skilled you are in canon law, the more we commend Your Fraternity in the Lord for having recourse in doubtful questions to the Apostolic See which, by the Lord's disposition, is the mother and teacher of all the faithful. Thus the Apostolic See may correct or approve whatever you hold and teach to others from your learning in canon law.

Your Fraternity indicated to us by letter that you would ask us what should be lawfully done when one spouse passes into heresy, and the one left desires to enter second vows and beget children. So, with the common counsel of our brothers, we reply to your question as follows: Although a predecessors or ours [X 3.33.1] seems to have judged otherwise, we make a distinction. Sometimes one of two unbelievers converts to the Catholic faith, at other times, one of two believers slips into heresy or the errors of paganism.

If one of two unbelieving spouses converts to the Catholic Faith, and the other refuses to cohabit with him, or will not do so without blaspheming the Divine Name, or tries to draw him to mortal sin, the one left may make second vows, if he wishes. In this case we acknowledge what the Apostle said [1 Cor. 7:15], ``If the unbeliever departs, let him depart. For a brother or a sister is not under bondage in this such cases,'' and the canon [C. 28 q. 1 c. 7] which says that contempt for the Creator dissolves the law of matrimony for the one who is left.

But if one of two believing spouses falls into heresy or passes to the error of paganism, we do not believe that the one left can pass to a second marriage while the other is alive, although even greater contempt for the Creator was shown. There is, indeed, true marriage between unbelievers, but it is not ratified. Among believers it is true and ratified, because the Sacrament of Faith, once admitted, is never lost, and it ratifies the Sacrament of Marriage so that it is permanent while the spouses live.

One might object, and some do, that the believer left should not be deprived of a right without fault, which often happens when the other spouse is divorced. But our answer neutralizes the malice of some persons, who, because they hate their spouses or both dislike each other, would simulate heresy as an excuse to enter other marriages if they could dismiss a spouse for this.

This answer resolves the question whether the believing spouse must return to the one who comes back from heresy or unbelief.

[Given at the Lateran, 1 May 1199.]


C. 8.

Pagans converting to the Faith are not to be separated, even if they are related within a degree prohibited by canon law. So for the first. If a pagan previously had several wives, he is to keep the first after accepting the Faith. So for the second. If he has repudiated a wife and contracted with a second, after Baptism he is to dismiss the second and take back the first whom he repudiated, unless the repudiated woman has contracted with another,     because she is then a fornicator. So for the third.


The Same to the Bishops of Tiberias.

We rejoice in the Lord, in the power of His virtue, and in the Father of Lights, from whom is every best and perfect gift [cf. Jam. 1:17], and we give abundant thanks that, as you have indicated to us in your letter, a man, who did not desire the death of a sinner but that he be converted and live [cf. Ez. 33:11], in his final days inspired the hearts of many pagans to come to the Christian Faith.

You have asked to be taught by apostolic decree whether pagans who have taken wives in the second, third or more remote degrees ought to remain joined or be separated from them after conversion. On this we reply to Your Fraternity as follows: The bond of Marriage exists between a believer and an unbeliever, as the Apostle shows in a certain way when he says [1 Cor. 7:12], ``If any brother has an unbelieving wife and she consents to live with him, let him not put her away.''

The pagans contracted these marriages in the foregoing degrees lawfully on their part, because they are not bound by canonical enactments. According to the same Apostle [1 Cor. 5:12], ``For what have we to do with judging those outside?'' Therefore, especially when their wives receive the Christian Faith and religion, the husbands, fearing that they will be deserted, can easily be converted. Such believers, united in marriage, can freely and lawfully remain united. For the Sacrament of Baptism does not dissolve marriages but forgives transgressions.(76)

But it is a suitable question whether pagans who divide their conjugal affection among several woman at once can retain all after conversion and, if not, which they should retain.

It is read [cf. d. G. a. C. 32 q. 4 c. 3] that the patriarchs and other just men, both before and after the Law, had many wives at once. The Gospel or Law does not seem to command the contrary. Pagans are not subject to the canonical discipline established later. This is all incontrovertible. Now according to their own discipline they lawfully contract with several women. The water of Sacred Baptism does not dissolve these lawful unions. So pagans converted to the Faith of Christ shall enjoy a plurality of wives following the example of the patriarchs.

But this seems contrary and hostile to the Christian Faith. From the beginning one rib was turned into one woman [cf. Gen. 2:21-22], and divine Scripture [cf. Mt. 19:5] testifies that for this case a man shall leave his father and mother, and cleave to his wife, and the two shall be one flesh. It did not say, ``three or more'', but ``two.'' It did not say,``will cling to his wives,'' but, ``to his wife.'' Hence Lamech [Gen. 4:19], who is read to have had several wives at once, is upbraided in Scripture because he was the first to introduce this reprehensible kind of bigamy. You have not asked about these matters, but we wish to inform you and others about them.

That truth may prevail over falsity, we assert without any hesitation that it was never lawful for anyone to have several wives at once, unless it was allowed them by divine revelation. At times this practice was considered right, and so the patriarchs and other just men who are read to have had several wives are excused from adultery. So also Jacob is excused from lying [Gen. 27:19], the Israelites from theft [Ex. 12:35], and Samson from murder [Judg. 16:30].

The truth opinion is shown by the truthful testimony given witness to it in Gospel [Mt. 19:9], ``Whoever puts away his wife, except for fornication, and marries another, commits adultery.'' So if one cannot lawfully take another when a wife is sent away, even more obviously he cannot do so when she is kept. So it is evident that plural marriage is reprobated for either sex, since they cannot be judged differently. Public utility urges . . . . (X 4.17.15.)

If a man has repudiated his lawful wife according to his own discipline, he cannot lawfully have another while she is alive, even when he is converted to the Faith of Christ. The Truth in the Gospel condemned such repudiation. This is the case unless she refuses to live with him after his conversion, or will not consent to it without contempt for the Creator or without drawing him to mortal sin. In that case, she is denied restitution if she seeks it, even if there is clear unjust spoliation. This is because according to the Apostle [cf. 1 Cor. 7:15], a brother or sister is not subject to this kind of bondage.

If he converts to the Faith, and she then converts and follows him before he can take a lawful wife for the said reasons, he is compelled to receive her. Also, according to the truth of the Gospel [Mt. 19:9], a man who takes a woman who was sent away commits adultery. Nor can the man who dismissed her have the defense of fornication because she married another after the repudiation, but only that of any fornication which she had previously committed.



C. 9.

One cannot lawfully take a brother's widow as a wife. If one does, they are to be separated until the Church grants     a dispensation.


The Same to the Bishop of Livonia

and his Brethren.

God, who in his Church (cf. X 3.1.11). In the church of Livonia a discipline different from ours is followed in contracting marriage for those newly converted to the Catholic Faith. They do not observe the canonical distinctions concerning consanguinity or affinity. They are accustomed to couple indiscriminately with their brothers' widows. You do not wish to receive them for Baptism unless they send such away.

Lest, because of this, they draw back from a good intention and refuse to believe because they are not permitted to keep their brothers' widows, and in view of the novelty of the practice and the people's weakness, we concede that they enjoy marriages they contracted with their brother's widows, provided they contracted with them to raise up seed to the dead brother in accord with the Mosaic law [Deut. 25:5], when their brothers died without offspring. But we forbid such marriages after they have come to the Faith.

Following [in this] the example of our predecessor of happy memory, Pope St. Gregory [C. 35 qq. 2 & 3 c. 20], lest the people of Livonia shrink back from the good they have begun from fear that it is too difficult, by apostolic authority, we dispense them to contract marriages in the fourth generation and beyond, until they are more solidly established in the Faith.

We do not grant them this with the intention that those already solidly rooted in the Faith enter such unions. Rather, following word of the Apostle [cf. 1 Cor. 3:2], ``I give you milk, not meat,'' we make this concession (which should not be permitted later), so that something good, planted with a weak root, not be destroyed, but be strengthened and faithfully brought to perfection.

The bond of marriage does exist in a certain way between believers and unbelievers, as the Apostle [1 Cor. 7:12] asserts, ``If any brother has an unbelieving wife and she consents to live with him, let him not put her away.'' The pagans are not bound by the canonical enactments, for according to the same Apostle [cf. 1 Cor. 5:12], it is not for us to judge those outside. Therefore, marriages among them are lawfully contracted in the second and third degrees.

When wives accept the Christian religion and faith, their husbands, fearing that they will be deserted, can easily be brought to favor it. So the faithful, who were united matrimonially in this degree when they were unbelievers, can freely and easily remain married. For sacrament of baptism does not dissolve marriages, but forgives crimes.(77)

Other things . . . . [cf. X 5.38.7.

[Given in our fourth year, 19 April 1201.]




TITLE XX

Nuptial Gifts and the Restitution of Dowry after Divorce



C. 1.

When matrimony is legally put asunder the dowry is to    be returned.


From the Council Held at Worms.

We order that the whole dowry, which they received on their nuptial day, be returned to women separated from their husbands for lawful cause. At the end of a year, they may take another husband if they wish; similarly, the husband, a wife.



C. 2.

The dissolution of matrimony requires the man to return the dowry, and to divide the goods that the two owned in      common.


Urban III to the Dean, Chanter and

Chapter of Lisieux.

The woman P. has indicated to us that she took H. as husband, that a divorce was solemnly declared between them, and that he unlawfully retains her dowry and refuses to return it. She also attempted to claim individual possessions and obligations which came to them under common title while they lived together and from which she is excluded.

Therefore, by apostolic decree we command Your Discretion: If this is correct and there are no further objections, compel him by ecclesiastical sanctions to restore the dowry and divide what they once held in common.


C. 3.

The one delegated to hear a marriage case is to order the return of the dowry, if he grants a decree of divorce.       This case is often invoked.


Clement III.

We committed to you for canonical decision a certain marriage case between H., a citizen of Pisa, and the woman M. We highly respect your prudence because, finding consanguinity between them in the sixth or seventh degree, you gave a decree of divorce.

The woman seeks her dowry from the man, and you have asked what should be decided. According to the law, you, who have principal charge of the marriage case, can investigate and give accessory judgment about the dowry because it is an incidental case.

By apostolic decree, therefore, we command Your Discretion: First, warn H., and then compel him to restore to M. her whole dowry without delay, in accord with the canons [X 4.20.1-2].


C. 4.

A wife separated from her husband for adultery loses her     dowry.


Clement III.

Frequently, you report, women in your parish leave their husbands on account of fornication and remain so until their deaths. When th