OUTLINE — DISCUSSION CLASS 4

Gratian, Causa 27, quaestio 2:

“A certain man who has taken the vow of chastity espoused [desponsavit] a wife; she, renouncing the previous match, betook herself to another and married him; he seeks after her to whom he was previously espoused.

The first question is whether there can be marriage between those who have taken a vow of chastity?

Second, is it permitted for one who is espoused to leave the one to whom she is espoused and marry another?”

[quaestio 2] Part 1. Gratian: The second question follows in which we seek to discover whether a girl espoused to another man can renounce the previous match and transfer her vows to another. First, we shall see whether they are married, second whether they can depart from each other. That they are married is easily shown by the definition of marriage and by the authority of many. … Again John Chrysostom on Matthew [an anonymous author of a collection of homilies on Matthew, Homily 32]:

[Canon 1.] Coitus does not make a marriage, but will does. …

[Canon 2.] Again, Pope Nicholas [I, Response to the Bulgarians (866), c.3]:

According to the laws, consent alone between the parties suffices when the question is whether parties are married. If that alone is lacking, anything else, even if accompanied by coitus, is frustrated.

[Gratian’s answers to these texts, which seem to constitute a powerful objection to his thesis, does not come until the dictum post c. 45 (Mats., p. VIII–10). These seem to boil to two arguments: 1) in context these quotations do not support the view that marriages without intercourse are indissoluble, and (2) there’s a distinction between necessary and sufficient conditions. Rather, having gathered together 15 canons that do not seem to support his position, Gratian then offers two that to his mind do:]

Canon 16: [Attributed to Augustine]

There is no doubt that a woman who has not had intercourse is not a married woman.

Canon 17: Again Pope Leo [to Rusticus of Nabonne, Ep. 167, 458–9].

Since the partnership of nuptials was so instituted from the beginning that it does not have in itself the sacrament of the nuptials of Christ and the Church unless there has been a mingling of the sexes, there is no doubt that that woman does not pertain to marriage in whom it is learned that there was not nuptial mystery.

[The core, however, of Gratian’s argument does not rest on these questionable texts. It rests rather on what he deems to be church practice in six different specific areas, summarized below.]

Canons 18–28: A married man or woman may not espouse the religious life without the consent of his or her spouse, but that rule does not apply if the marriage has not been consummated.

Canons 29–34: These deal, somewhat confusedly with the following problems: (1) impotence, (2) the prohibition against a clergyman to marry a widow, (3) penalties for incest, and (4) raptus.

The problem of the marriage of the Blessed Virgin is scattered throughout the question. Gratian’s difficulty is that wants to maintain that Mary and Joseph were truly married, but they did not have intercourse.

At the end of the question Gratian turns to authorities that seem to forbid an espoused person from marrying someone else.

Peter Lombard on the Formation of Marriage

Dealing with many of the same texts as Gratian, the Lombard came to a different conclusion: indissoluble marriages are formed by exchange of words of present consent. Sexual intercourse has nothing to do with it. Promises to marry, however, are dissoluble.

Alexander III on the Formation of Marriage

1. Present consent freely given between a man and a woman capable of marriage makes an indissoluble marriage, unless one of the parties choses the religious life.

2. Future consent freely given between a man and a woman capable of marriage makes an indissoluble marriage, if that consent is followed by intercourse.

3. With few exceptions any Christian man is capable of marrying any Christian woman, so long as they are of marriageable age, not in orders or solemn vows, and not too closely related to each other.

Why Did Alexander III Decide as He Did?

How Does Accursius React to Alexander’s Decisions? (Mats., pp. VIII–21 to VIII–22)

What do you make of the following canon promulgated in 1215? (Lateran IV, c. 51 in Mats., pp. VIII–20 to VIII–21)

Although the prohibition of the conjugal bond has been revoked in the last three degrees, in other degrees we want it strictly observed.¹ Wherefore, following in the footsteps of our predecessors, we strictly forbid clandestine marriages, also forbidding any priest from presuming to participate in them. Therefore, extending generally to all places the custom of some places, we decree that when marriages are to be contracted, they shall be proclaimed publicly in the church by the priests, and that an appropriate time be set within which anyone who wishes to and can may bring forward a lawful impediment. Regardless of whether this happens, the same priests shall investigate whether any impediment exists. When a probable conjecture appears against the joining, let the contract expressly be forbidden until it can clearly be established by documentary evidence what ought to be done about it.

If anyone presumes to enter into this kind of clandestine or interdicted marriage in the forbidden degrees of kinship, even if unknowingly, the progeny born of such marriage shall be deemed illegitimate, having no assistance from the ignorance of their parents, even though those who so contract seem not to be privy to the knowledge or rather pretend ignorance. Similarly, offspring shall be deemed illegitimate if both parents, knowing of a lawful impediment, despite all interdict, presume to contract in the face of the church.

Clearly any parish priest who fails to prohibit such unions or any regular priest [i.e., a member of a religious order] who presumes to become involved with them ought to be suspended from office for three years and should be more severely punished if the gravity of the fault demands it. And also let a Wtting penance be imposed on those who enter into such marriages even if in a permitted degree [of kinship]. Moreover, if anyone maliciously interposes an impediment to a lawful joining, let him not escape ecclesiastical sanction.

1. Lateran IV, c.50, had reduced the degrees of kinship within which marriage was prohibited from seven to four, i.e., previously marriage had been prohibited among sixth cousins and anyone more closely related; the Council reduced it to third cousins.

Canonists on Marriage