Subdoubt I: On concubinage

THIS is the concubinage of a man with an unmarried woman, whom one keeps at home as his own. So commonly the Doctors, cited by Farinaccius, tom. 4. quaest. 138. For concubinage in civil law these conditions are required. First, that the woman and the man cohabit together: Second, that it be in his own house: Third, that they consort frequently: Fourth, that the woman be unmarried: Fifth, that she be one only: Sixth, that she be kept as a wife.

But in canon law it is thus described: It is the concubinage of a man with an unmarried woman, whom one retains either in his own house or elsewhere; and to whom he has recourse frequently and by custom, whether he keeps her as a concubine, or as a servant, or in any other manner whatsoever.

IT is however a grave sin, or rather a state of sin. Whence such men are not to be absolved before they have cast the woman out of the house; or if they keep her elsewhere, one must first see whether they have withdrawn from that state, as Fagundez notes, lib. 6. cap. 2.

PENALTIES are imposed by the Council of Trent, sess. 24. de reform. cap. 8. decreeing a threefold admonition, after which they are to be excommunicated, and if they persist obstinately for a year, they are to be punished at the judgment of the Bishop: But the woman, if admonished and not departing, is to be expelled from the city, or even from the diocese.

THESE penalties are imposed on public concubinaries. These are they whose concubinage is notorious, either by sentence, or by confession lawfully made, or by the evidence of the fact, which cannot be concealed by any evasion, as Fagundez notes, num. 7. with D. Bonaventure in 4. dist. 13. quaest. 4. ad argumenta.

NOTORIOUS also is that concubinary whom Farinaccius calls, num. 8. loco cit. who keeps in his house a woman suspected and defamed of incontinence, and, when admonished, does not cast her out; but the Saintly Doctor wills that of itself this is not enough; however the Holy Council of Trent, sess. 25. de reform. cap. 14. declares as public concubinaries those Clerics who keep women of this kind suspected of incontinence, and condemns them to penalties.

IT is asked, moreover, what penalties are due in canon law to Clerics who are public concubinaries.

THE FIRST opinion is, that they are suspended by the very fact by law, and become irregular, if while under the same suspension they celebrate, or exercise an act of sacred Order. So Toletus, lib. 1. sum. cap. 47. Sylvester, verb. Concubinarius, Navarrus, man. cap. 25. Julius Clarus, §. fornicatio, Azor, lib. 6. cap. 7. quaestio 5. and others, cited by Fagundez, in 6. praecept. lib. 6. cap. 2. num. 9.

THE SECOND opinion denies that they are suspended by the law itself, nor become irregular, if etc.; yet they can be suspended by the Bishop, if thrice admonished they do not withdraw. So Suarez, de censuris, disp. 31. sect. 4. and Tom. 3. de sacram. disp. 18. sect. 1. Sayrus, de censur. lib. 4. cap. 16. Rodriguez, tom. 1. cap. 67. Medina, lib. 1. cap. 11. Enriquez, lib. 9. de excom. cap. 25. §. 13. ad marg. litt. P. and others, whom Fagundez follows, n. 10. and Bassaeus, V. Concubin. num. 5.

THE opinion of D. Bonaventure, in confessionali, c. 5. particul. 50. et 52. is, that they are suspended by the law itself, until they do penance. He proves it from cap. Vestra de cohabit. Cler. and from cap. Quaesitum, under the same title. He holds the same more clearly in 4. dist. 13. quaest. 4.

AND indeed in cap. Vestra, it is concluded: Without doubt hold it certain, that from Clerics and Priests, even though fornicators, as long as they are tolerated and have not the evidence of the deed, the divine mysteries may lawfully be heard, and the Sacraments received. This text the Saintly Doctor urges, in 4. dist. 13. quaest. 4. ad argumenta, and other Doctors of our opinion, among whom add Maiolus, de irregul. lib. 5. cap. 37. Firminus, V. Concubinarius, num. 5. and V. Clericus, num. 13. Vivaldus, in candelabro, tit. de suspen. num. 19. Vega, in sum. 2. part. cap. 108. casu 3. Rebuffus, in concordatis, tit. de public. concubinariis, in the first, third, and ninth penalty, Villadiego, de irregul. cap. 3. Guido Papa, decis. 558. Farinaccius, in 4. quaest. 138. de delictis carnis, num. 55. Innocent, Hostiensis, Butrio, the Archdeacon, in cap. Vestra, in cohabit. Clericorum, et mulierum, where with D. Bonaventure they understand the text of the Decree in the same way, Decianus, in tract. crim. lib. 5. cap. 21. n. 10. Vivius, opin. 123. Ludovicus Lopez, 2. part. Instruct. cap. 23.

Fagundez answers, that these are condemned in cap. Vestra in the same way as in cap. Clerici, where they are not suspended, but it is commanded that suspension be imposed by the Bishops, and as in cap. Quaesitum, where they are not suspended, but the faithful are only charged not to receive the Sacraments from them, because they are scandalous; for the Pontiff says: It has been asked concerning clerics fallen into fornication, whether their offices are to be attended. Truly, although anyone is held to be suspended on account of a mortal sin as regards himself, he ought nevertheless not to be shunned in the divine offices: unless a sin of this kind be notorious, by sentence, or by confession made in law, or by the evidence of the fact, which cannot be concealed by any evasion.

Therefore Fagundez says, that no suspension is imposed on these; for, he says, public concubinaries are equated with occult ones, and as the occult one is improperly suspended, insofar as he is unworthy, so also the public one.

BUT these are trifles, as the Saintly Doctor saw; for the law does not equate them, but lays down an exclusive rule of true suspension, unless they are notorious.

SECONDLY, from the Concil. Trid. sess. 25. cap. 14. where concerning these it says: As regards the ordinaries, and also delegates of the Apostolic See, it shall be at their judgment whether they be suspended, and if, being thus suspended, they do not expel them, etc. let them be deprived of whatsoever ecclesiastical benefices, portions, pensions, and offices, etc.

Fagundez says, num. 10. that these words serve his purpose excellently, as if the Council commanded the Bishops to suspend them, but not to declare them suspended. But the words of the Council have another sense, namely, that they remain suspended, according to the ancient laws, until they be absolved by the Bishops, by the Bishops, etc.; which words are clear. It is confirmed, for in sess. 24. cap. 14. the Council confirms the ancient laws, saying: The other penalties of the law remain in their force. Nor let Fagundez say that these are to be imposed by mandate in those words, sess. 25. cap. 14. otherwise, let them be punished with the penalties imposed by the sacred Canons, or the statutes of the Churches. For these words speak of temporal penalties, deprivations of distributions, etc. as I said.

Fagundez answers, n. 12. that those laws have been abrogated by custom.

But on the contrary, for they are confirmed by the Holy Council, notwithstanding any custom whatever. It is confirmed evidently from the declaration of the Most Eminent Cardinals, the Interpreters of the Holy Council, to whom alone it is permitted to interpret the Council, but not to Fagundez or other Doctors of the opposing opinion; there, however, they decide: Concubinary Clerics are even today, if they be notorious, suspended by the law itself from the divine offices, just as they are also in the old law.

This declaration utterly overturns every solution of the adversaries.

What the Canons understand concerning public concubinaries, they understand also concerning public fornicators, as the Saintly Doctor notes, in the places cited, and it is had in the canons alleged, as Toletus notes, lib. 1. cap. 47. Sylvester, V. concubinarius, Fagundez, num. 15. Now a public fornicator is one who, wandering about, abuses now this woman, now that.

The difficulty is: whether in our opinion, which Fagundez confesses to be very probable, numero 9. under the name of Cleric there are also understood those constituted in Minor Orders; and indeed the Canon Vestra names Clerics separately from priests: Therefore it includes all, as the Saintly Doctor relates, loco cit. in 4. Farinaccius agrees, loco cit. Diaz, cap. 79. and others. They seem, however, not to be included, because it speaks in relation to the exercise of solemn Order, and this is not in the Minor Orders, and accordingly irregularity is not incurred. So Fagundez, num. 16.

Fagundez also notes, num. 17. that these are not excommunicated by the law itself, for in those laws no mention is made of excommunication.

In civil law no certain penalty is established for these, as Fagundez notes, num. 19. yet the administration of their goods may be interdicted to them by secular judges, just as the same faculty is impeded to women living luxuriously; it is clear from the leg mulier, ff. de curatore furioso. The reason is, because one who lives luxuriously is called a prodigal in morals, the Gloss, in leg. si quis cum iure, ff. de usucap.

Hence many have said that it is a crime of the spiritual forum only. So Clarus, quaest. 37. Portius, consil. 21. Tuschus, de visitatione, lib. 2. cap. 21. Ancharanus, ad cap. Cum sit, de foro compet. the Abbot, ibi num. 25. Soncinus, num. 24. Aretinus, num. 15.

Others, however, distinguish: as regards penalties, at present, the secular judge alone is Judge for secular persons; but for future amendment, Bishops and others can discharge that function.

It is proved from cap. penult. de cohabit. cler. et mulier. and the Council of Trent, sess. 24. cap. 8. and sess. 25. cap. 14. and in the former place it speaks of secular persons, and for their emendation it commands that a threefold admonition be prefixed, which is called the competent admonition, as the Saintly Doctor observes, in Confess. loco cit. See Fagundez, num. 20.

Some have said falsely, that the concubines of Clerics cannot be punished by the secular forum. For why should these secular women not be punished for a secular crime, or enjoy a forum?

There are some saying that concubines are not forbidden, but approved by civil law, leg. 3. ff. de concubinis, from Genes. 21. et 22. Iud. 19. 3. Reg. 11. where holy men kept concubines.

But these were wives, though they had a lesser dignity than the others, as the Saintly Doctor proves, 4. dist. 33. q. 1. and I shall show in the 3. part. Tract. de matrim. see what I have said of these, tom. 4. disp. 17. quaest. 10. sect. 30.