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:

C. 1.

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:

C. 3.

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

Gratian: A noblewoman learned that another noble's son sought her in marriage. She consented. But a non-noble of servile condition offered himself under first man's name and took her as wife. Her first choice at last arrived to seek her in marriage. She complained that she had been deceived and wanted to marry the first man. The questions here are:

First, were they married?

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

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

Gratian: A man seduced another's wife. When that man died, the adulterer took the adulteress as wife. He swore he would give their daughter to another in marriage. But another man wanted to take her. It is asked:

First, can one previously polluted by adultery be taken in marriage?

Second, can a daughter be given to a man against her will?

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

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.